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Historical Context & Legitimacy Thresholds

In keeping with E.H. Carr's admonition to "listen for the buzzing" when reading a work of history, I thought I'd take the opportunity, at this juncture, to step in with a few thoughts on historical context and legitimacy thresholds. Bill Snyder writes that Military Commissions are more flexible than domestic courts, and wonders whether, as consequence, Hamdan was lucky to not have received a harsher sentence than he did. Brian Williams, post-narrative, raises an interesting point through reference to John Walker Lindh, who received a much harsher sentence than did Hamdan for his activities. There are of course differences between the two cases, but the one that strikes me as most relevant  - or at least instructive - is the timing of their respective trials (rather than which set of laws can or should be applied).

Lindh, an American citizen, was captured soon after 9/11, with the hint of treason about his case that couldn't be reasonably pursued, given the context within which his circumstances came to light. His fate, one might plausibly argue, had much to do with the fact that the post-911 fires of revenge still burned strongly in the bellies of all concerned. Hamdan was not American, but this isn't really my point; he was tried and sentenced at a time when the Bush Adminstration had largely sated such passions and exhausted whatever reservoirs of political capital claimed so brashly in the wake of the 2004 Presidential elections.

It surely is no great revelation to suggest that law is political or its application politicized. In this, it seems to me that historical context is entirely germane, and though such a short period offers only a microhistorical glimpse of change, differences of approach at beginning and end of the Bush Administration speak volumes to the politicization of law - not to mention to how such things will or can survive the quills of future historians. The immediacy and currency of these issues, unfortunately, drive the expedient measures from whence politics erupt and perceptions are skewered. Can their effects be palliated?

Craig Hayden recommends transparency as the best medicine, but observations made by Tony Waters, Lisa Wynn and Brian Williams suggest generational outcomes that may not be so easily overcome. Tom Johnson, likewise, notes the disastrous effects of bunkered nationalisms and blinkered threat perceptions to our own societies, as well as to those that host experiments in internationalism. Legitimacy thresholds, of course, are central to any discussions of violent non-state actors. Misapplication and abuses of legal process, political engagement with terrorist organizations, the prerogatives of sovereign states, the entitlements of sovereign actors - all are shaped and decided through a lens of perception. So too, as Marc Tyrrell suggests, are the incentives and buy-in necessary for non-state actors to participate meaningfully in state-sponsored processes such as the Laws of Armed Conflict.

This, it seems to me, is critical to the debate - indeed, it was a central question of the New Battlefields, Old Laws project. "The opening of negotiations can be a catalyst for the decline or end of terrorist

groups," writes Audrey Kurth Cronin, "potentially engendering a range of effects." More, "Groups have transitioned to

political legitimacy and away from terrorist behavior after the formal opening

of a political process." I hesitate to quote more here, since the extract is taken from a larger - and excellent - survey of research on how terrorist groups, and more precisely Al Qaeda, come to their ends; it needs to be read in full, and Cronin speaks to political legitimacy as but one variable among several. I'm also not suggesting, one way or the other, that we should be engaged in direct talks with terrorists.

What I am arguing, consistent with points raised by both Marc Tyrrell and Jason Ralph, is that we are parts of much broader processes in which legitimacy markers and thresholds are deeply embedded. In this, the opening of negotations begins when the first shots are fired across the media bow, continues though no sign until the burst of fire, and ends, perhaps anticlimactically, with both sides setting aside rhetoric and acknowledging their more or less equal footing. Not a heroic conclusion, certainly, to an epic fight. But perhaps a more reasonable one.

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