Yes Dan, you're absolutely right of course! But would you clarify for me what it meant for FDR to declare war on Japan and yet still furnish lawyers to the Japanese war criminals? And how it was that Hirohito avoided trial? Weren't those A Bombs tantamount "to pronouncing a sentence before guilt [was] found?"

Thanks!

I'm no Dean supporter , but the level of partisan inanity his comment has generated is incredible.

Logical question for Professor Denzer: how is your support for the decision to go to war in Iraq not tantamount to "pronouncing a sentence before guilt is found"? [So Saddam should have been strung up the moment we got our hands on him?--ed. No, of course not. But I can hear Karl Rove cackling with glee from this time zone]

If mention of an Osama trial is political suicide, what effect should mention of a Saddam trial have on GWB's career? Is Karl Rove "cackling with glee" over that question?

Hello! Cognitive dissonance, anyone? Listen, if ya don't like Dean, ya don't like Dean. There's absolutely nothing wrong with that. But when Bush says "A" and gets applause, and Dean says "A" and gets hounded, if you want to maintain the illusion of fairness and balance you so cherish, you have to refuse to follow the script and call "bullshit" on this one.

Dean's comment seems perfectly sensible to me, and it's consistent with my own views. Yes, a war short-circuits the judicial process, but that's precisely why a war should be the very last step. I don't really understand Professor Drezner's labeling Dean's comment "stupid."

Anne and BP,

The comparison to Bush's statements on Saddam's trial would be apt -- if, in discussing where Saddam should be tried, Bush had gone out of his way to say that he didn't want to pre-judge Saddam's guilt.

Hi Dan,

It's still early in my timezone, and the coffee is perking, but I still don't understand you and hope you will clarify your most recent comment.

What kind of a trial is it if you pre-judge the guilt? What is the point of having a trial if you pre-judge guilt? (Bonus question: What kind of countries became famous for their show trials?)

What would you have had Dean do? (1) Announce that he expects a jury to find Bin Laden guilty. (2) Say nothing. (3) Announce that he expects a jury not to pre-judge Bin Laden?

I don't see choice (3) as the *stupid* choice. It appears to be the ethical choice. But I am genuinely curious as to your thoughts on this.

" Bush had gone out of his way to say that he didn't want to pre-judge Saddam's guilt."

Nowhere did Dean say he didn't want to pre-judge Osama's guilt.

He said that while Osama was "very likely to be found guilty", he "resisted pronouncing a sentence before guilt is found", noting twice that "we should do our best not to, in positions of executive power, not to prejudge jury trials" and "it's not so great to prejudge the judicial system".

When a man mentions, twice, that executive pre-emption of the judicial process is not a desirable thing, it takes lots of guts to insist that what he *really* means is that Osama might not be guilty after all.

And I stand by my statement re. GWB and Saddam: Bush has resolutely refused to speculate on Saddam's punishment. If Dean refuses to do the same likewise re. Osama, why on Earth is he being pilloried for it?

Howard Dean would treat terrorism as a legal problem, and not as a political one. By turning what are indisputably acts of war into legal issues, a Dean Administration could avoid making hard decisions about the use of military power. Maybe he is more like Clinton than he admits.

"By turning what are indisputably acts of war into legal issues, a Dean Administration could avoid making hard decisions about the use of military power."

Do you actually know what the phrase "act of war" means, Mark, or do you simply like using cool-sounding phrases on Internet because that obviates the need for critical thinking?

Dean was blase about Osama, until coached later on about what a normal human being would have said. There is a certain sensitivity lacking, a vacancy where the wiring for how to emote vis-a-vis admitted mass murderers should have been. There's also some confusion between legal prejudice and calling a spade a spade. Drezner rightly refers to this as a stupidity.

Mark,

It's been proposed that one of the best ways to get rid of dictators and other human rights violators is to take them to court. It lays the facts out, it garners both international and local support. It even justifies unilateral actions.

Too legal I know, it's best just to jump in with little or no support, little intelligence, and no way out.

"There's also some confusion between legal prejudice and calling a spade a spade."

The confusion is entirely yours, Jim.

If Osama is going to be tried, then the executive must stay out of the judicial process.

If Osama is too dangerous to be tried, then he should not be tried. Have a Special Ops team take him out. Shoot him on sight. Assasinate him. Don't sully the courts with travesties and mock trials. Above all, never, ever give the executive branch decisive power over the judicial branch. For any thing. Dean is 100% right on this one. I can't believe I'm defending him. I can't stand the man. Damn it, what are y'all, spineless chicken littles eager to surrender all liberties in pursuit of the ghost of temporary safety?

"Do you actually know what the phrase "act of war" means, Mark [...]?"

If deliberate attacks on two U.S. Embassies, major attacks on civilian targets in the mainland U.S., and an attack on a U.S. Navy warship do not constitute acts of war according to your definition, then you may need to rethink your classification scheme.

If the above acts are prefaced by an overt declaration of holy war and still do not constitute acts of war, then we can safely assume your definition is lacking something important.

"It's been proposed that one of the best ways to get rid of dictators and other human rights violators is to take them to court."

I agree wholeheartedly. I think Milosevic and Hussein belong in international courts. I disagree, however, that UBL is a "dictator or HR violator" whose primary threat is to his own people or to international norms.
He is an ongoing threat in an ongoing war.. More of a Yamamoto than a Charles Taylor, if you will...

Let's see... It's only December and people are already predicting a Dean nomination by the Democrats while, in the same moment, pouncing on every word or phrase for some indication that he is either lacking in intellegence, incompetent, uninformed, or all of the preceding.

What this is beginning to play up to is a people watch to see whether the incumbent, Mr. Bush, or the challenger, Mr. Dean will most trip over their own tongues. I can't wait for the "debates".

There must be a better test of Mr. Dean than to require that he prognosticate a future and proper legal proceeding for Bin Laden or Saddam because these issues will be Mr. Bush's to resolve in the coming year. Besides, is anyone giving Mr. Dean a real chance to actually win the Presidency?

Republicans claim that traditional liberals and moderate Democrats are moving right, rather than left on the magic line of political demarkation; and no Republican is going to vote for a Democrat; so why even bother with a pre-election campaign? In turn, why bother with continual disection of Mr. Dean's every word?

Mr. Drezner, for one, seems to me to be supporting this very point, or that he has a better candidate for the Democrat's presidential nomination.

Ah, so you're making shit up, Mark. Here's a clue: the phrase "act of war" has a specific meaning that neither you, nor I get to decide all by our lonesomes.

Something for you to chew on: Was blowing up the Alfred P. Murrah building an act of war? Was the attempt to poison members of the US Senate with anthrax an act of war? By your own private little definition?

I give the floor to Lectric Law, first guest on the Google list ...

"WAR - A contention by force; or the art of paralysing the forces of an enemy.

It is either public or private. It is not intended here to speak of the latter.

Public war is either civil or national. Civil war is that which is waged between two parties, citizens or members of the same state or nation. National war is a contest between two or more independent nations) carried on by authority of their respective governments.

War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention, but also when, they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force, and have declared publicly, or by their acts, their determination so to decide it.

National wars are said to be offensive or defensive. War is offensive on the part of that government which commits the first act of violence; it is defensive on the part of that government which receives such act; but it is very difficult to say what is the first act of violence. If a nation sees itself menaced with an attack, its first act of violence to prevent such attack, will be considered as defensive.

To legalize a war it must be declared by that branch of the government entrusted by the Constitution with this power. And it seems it need not be declared by both the belligerent powers. By the Constitution of the United States, Art. I, Congress is invested with power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and they have also the power to raise and support armies, and to provide and maintain a navy." "
Or are you one of those types who likes using the word "act of war" ("islamofacism" is another hot favorite) because it sounds like, really, cool, and makes piddly little internet discussions sound, like, really important?

Am I the only one who got a little deja vu over Dean's statement? When he said that, in effect, OBL should have a traditional trial (like OJ), it reminded me of Mike Dukakis saying that he would prefer the same for the hypothetical perp who raped and murdered his wife. The difference between Saddam and OBL is that the latter attacked America, killed 3000, and bragged about it, threatening more of the same whenever they can figure out a way to get it done. Saddam is a war criminal, but as W. has said (and despite what Dean claims W. has said), Saddam has never directly attacked the US and never was likely to. He was just part of a worldwide anti-Western civilization conspiracy who had to be taken out. If the Shiite Iraqis had caught Saddam and done to him what the Italians did to Mussolini, no American would have been surprised or disappointed, except for the lost intelligence.

So, Saddam was a bad guy who needed taking out, and that has been done, but he is not a mortal enemy of the U.S. As long as we are in charge of him, he deserves as fair a trial as possible, not what a typical Shiite Iraqi would do to him. Osama, should he fall into our hands, should be strung up like Mussolini, unless we can chemically or psychologically get useful intelligence out of him.

To repeat, did Dean's statement remind anyone else of Dukakis, or am I (and Karl Rove) the only one who feels that way? I already see the commercial in my head.

jb9054: I actually saw the same commercial earlier today. Dean was caught in a Dukakian moment ala a Few Good Men. He said the correct thing to a mob of pundits looking for a John Wayne thing.

Why should we replace what we have now with someone who is clearly not ready for prime time? Whatever you think of Bush, at least he is a lot better trained by now. His statement on a similar issue -- the trial of Saddam -- did a great job of telegraphing to us what he REALLY thinks w/o getting himself into any sort of official hot water.

"And of course we want it to be fair. And of course, we want the world to say, well, this -- he got a fair trial. Because whatever justice is meted out needs to stand international scrutiny. I've got my own personal views of how he ought to be treated, but that's -- I'm not an Iraqi citizen. It's going to be up to the Iraqis to make those decisions.

"Q And the question of execution?

"THE PRESIDENT: Yes, I said I have my personal views. And this is a brutal dictator. He's a person who killed a lot of people. But my views, my personal views aren't important in this matter. What matters is the views of the Iraqi citizens. And we need to work, of course, with them to develop a system that is fair and where he will be put on trial and will be brought to justice -- the justice he didn't, by the way, afford any of his own fellow citizens."

“None of the Dean's campaign's comparative advantages are really threatened by this latest blunder. It's already clear that DC Democrats loathe and fear Dean -- to his base, however, this is just feeding the beast.”

I agree completely. Howard Dean has just about wrapped up the Democrat nomination. The liberal crazies dominate the process. Dean’s current statements even make him more appealing to this crowd. No, his real problems begin once he has to seek votes from mainstream Americans. Howard Dean will be lucky to earn even 45% of the national vote in 2004.

David, why are you such a playa hata?

I don't really understand this debate - even in times of war we have treated those we captured with some manner of due process. It's legitimate to try to kill bin Laden, but if he falls into American hands a whole different set of norms and principles apply.

We would not have summarily executed Yamamoto if he had captured him, or other mortal enemies of the US like Tojo and Goering, whether during or following the war. It's unclear to me why we would treat bin Laden differently than we did those who committed a rather clearly defined act of war at Pearl Harbor, or Nazi genocideers responsible for the slaughter of millions. Or for that matter why we would necessarily treat him differently than those who tried to blow up the WTC in 1993, the Unabomber, or Charles Manson. The American precedent is not summary execution, no matter how heinous and clear the crime, and no one has indicated a good reason to establish a new precedent, or why we should make an exception to the precedent in this case.

Quoting from Pejman doesn't do you well Dan. He's way too vitriolic and usually just full of it -- shun the instapundit misleading quoting approach please....

Does Dean stating he doesn't think it makes a difference where Bin Laden is tried really reveal Dean to be vacuous and lightweight? Or does it show that Dean has about the same level of foreign policy experience as Governor Bush did when he ran and couldn't name the leaders in Taiwan, India, Pakistan or Chechnya. Did Pejman say then that Bush was vacuous and lightweight?

This common error has been driving me batty for years. The public has embraces the fallacy that because we ensure due procces for all criminals, it is somehow sinful to "prejudge" before a trial. Have we lost our minds? Am I supposed to try to discuss the possibility that OBL is innocent as if I am having a rational discussion? People, get a grip.

What I don't get is the "inside baseball" aspect of the commment-- "...if you're running for president, or if you are president, it's best to say that the full range of penalties should be available."

Why use "best to say"? It sounds like that's not what he really believes but he knows that's not very smart politically to admit it. But of course most politicians are savvy enough not to admit that their answer is calculated, not genuine.

joe:

It's the dilution of legalisms into the public sphere. It's the sort of mentality that expects a soldier to consider whether or not the man shooting at him is a legal combatant and thus worthy of killing or merely wounding.

So are we to create another form of due process that is due-process-lite? This question often comes to mind when we catch people such as serial killers or whomever else and we have mountains of evidence that basically proves their guilt at the moment of their capture. Should these people get the benefit of a trial? Should they be able to consult a lawyer? Do they have a right to confront their accusers/prosecutors in open court?

More directly on the question at hand: we never declared WAR on anyone in the middle east....not Afghanistan, not Iraq.....so the war crimes/stringing people up in the public square thing doesn't seem to merit much discussion...if we were to catch OBL alive (and, my own opinion, why would we want to.....just gun him down and be rid of him and this whole argument) then we would be obliged to give him some sort of trial with some measure of due process.....then comes the question, can he actually receive due process in the US?? Are we impartial enough to do this? Should it matter? Should we care? Do our founding principles (ALL men are created equal......) really apply to ALL men or just American citizens?

As for Howard Dean, what he said was right on the money..the right thing to do is to not prejudge things like this in spite of your personal feelings....basically what W said, and yet the media, I guess feeling a little regrettful at letting W off the hook so many times in 2000, is now making up for their lack of scrutiny back then. Watch out if Howard Dean starts to criticize the media for this sort of thing. His already large warche$t will balloon!