John Buttrick of Concord can be reached at johndbuttrick@gmail.com.
I’m writing on a gray rainy morning in March. Another day I might welcome it as a foretaste of warm April showers watering new spring growth. But today it chills my bones and foreshadows another distressing day of a fumbling Senate hearing with Supreme Court Judge nominee, Judge Ketanji Brown Jackson.
Before the hearing began, political analysts were suggesting the hearing would be more political theater than a process of examining her qualifications, skills, methods and jurisprudence. It seems they were accurate. Lindsey Graham, Josh Hawley, Ted Cruz and a few others used much of their time showcasing their positions on selected issues and then summoned agreement from Judge Jackson. If she disagreed or maintained political neutrality, her answers were used to malign her character and/or her ability to be a fair Supreme Court judge.
We heard, ad nauseam, opinions from Republican senators about Judge Jackson being soft on criminals, giving light sentences to child sex offenders, defending Guantanamo Bay terrorist prisoners, and even suggesting religious commitments might taint her judgment. Lori Ringhand, a legal scholar, reports in the New York Times, “One thing that is striking about this hearing is how little effort we are seeing to engage the nominee on her views about actual legal issues.”
Indeed, April showers will soon wash away the detritus hidden under the winter’s snow revealing new growth. The hearing is over. However, beneath the accumulation of those scurrilous hearing antics was a demonstration of two stumbling blocks to effective communication. Their questions contained suspicion that true answers are seldom volunteered and also, confusion about the ways of war.
The first stumble assumes that honesty and truthfulness are rare commodities in the daily life of lawyers, politicians, corporate executives and diplomats, to name a few. Therefore, questions from some Republicans projected their assumption that honesty and truthfulness must be coerced or tricked out of the nominee. It is ironic that these senators used their skill in the political art of equivocation to demand transparency from Judge Jackson.
The spin on their own opinions invited caution and restricted open-minded communication. Whereas expecting honesty would have communicated respect. Respect invites truth-telling. The stumblings in this hearing exposed the need to seriously seek out ways for honest communication and truth-telling in a world dominated by conspiracy theories, lies and equivocation. The effort begins by building a culture of trust and respect for one another. There is even precedence for this: “Do unto others as you would have them do unto you.”
The second assumption, indirectly demonstrated in the hearing, was confusion about the concept of war. Sen. Lindsey Graham (R-S.C.) implied that Jackson’s assigned work defending detainees held without charge or trial at Guantanamo Bay imperiled U.S. national security. He pronounced, “If you tried to do this in World War II, they’d run you out of town.”
The obvious assumption is that the United States is at war and therefore the detainees are prisoners of war who must be held as long as the war continues. Senator Graham added, “The detainees must be held forever!” Judge Jackson responded, “Representing Guantanamo detainees was entirely about the limits of executive power, not exoneration of terrorists.” Identifying those limits would help to decide if a detainee was a prisoner of war or a suspected criminal. The former may be held until the end of a war. The latter must have an expeditious fair hearing in a civil court of law.
Examining these limits of executive power prompts the need to clarify the concept and definition of war. Lieutenant Colonel Rose Lopez Keravuori, a U.S. Army Reserve Military Intelligence officer, explains, “High Intensity Conflict (HIC), the idea of World War II-style fighting … is inaccurate for our times.” Contemporary and future small wars “will be short and quickly followed by counterinsurgency, stability operations, and/or nation-building.” These wars require aggressive force dependent on technology, firepower, and large-scale logistics for decisive and quick victory with minimal casualties. Also, this strategic American way of war includes advancing American national interests.
The problem with fighting these small wars is they often do not reach the planned goal of decisive and quick victories. Instead, they morph into counterinsurgency, stability operations, and/or nation-building that go on for years. A few examples include Russia and the United States in Afghanistan, Russia in Ukraine, Israel against the Palestinians, and the United States in Vietnam and Iraq. There are no obvious victories or endings.
In the United States, as hinted in the Senate hearing, there is no agreement about when the country is at war or when it has ended. Does the war continue while troops occupy a country for nation-building? Is it war when only drones are used to kill individual suspected terrorists in their own country? Is it war when a person is arrested for shooting or bombing civilians in America? Is that person a war terrorist bound for Guantanamo or a criminal to be tried in a civil court?
If the leaders of the country are unable to agree upon when the country is at war, what happens to justice for “prisoners of war?” What happens to an accused person’s fourth amendment “right to a speedy and public trial?” The health of American democracy depends upon clarifying the answer.
The U.S. military has 750 United States foreign bases spread across 80 nations and participates in continual actions of counterinsurgency and nation-building. The nation needs an in-depth study to understand and define the parameters of contemporary small wars. Without them, democracy will weaken and justice through the U.S. courts will be diminished.
The Senate hearing to consider the nomination of a Supreme Court justice may have been painful to watch. But it can also be redemptive as a motivator for reform. Our mission, if we choose to accept it, is to become a people expecting truth from others and a nation expecting an end of war. Just imagine neighbors and nations reciprocating our expectations.