Once more, mit a bissel feeling.

Democracy is not a suicide pact.

Law usually lags behind reality and sometimes, law being a clumsy, lazy, sneaky beast, has to be prodded along.

A civilization that does not know when it’s in danger; a civilization that knows it but refuses to acknowledge it; a civilization that acknowledges it but refuses to do anything effective about it; may deserve to last. But it won’t.

Time to declare war.

Since there ain’t gonna be world peace any time soon, and since the Israeli/American/Arab policy of “containing” and “managing” (and buying off) the various Jihadist enemies has failed, and since the Europeans don’t even do that much very well . . . time for at least some of us to get real.

A bit of personal disclosure, mentioned not because I’m unique, but because I’m not.

My politics fit no standard category. I suspect a lot of people have the same sense. It’s been a long trek leftward from my adolescent days as an American Goldwater supporter, back when Jews didn’t much care for Big Mike Goldwasser’s grandkid. I opposed the Vietnam War but joined the Marines as the war wound down because American Jews had, I felt, a special obligation to serve and because I felt the Baby Boom Generation would ultimately harm the nation more than the war itself.

I was right.

The elder neocons made sense. But I found myself drifting away from conservatism because of their adamant refusal to accept America’s to-do list: women’s rights, gay rights, climate change, globalization, fixing their own culture of bigotry, hype & trash, and on and on. I saw 9/11 coming, even predicted it in two columns for Washington Law & Politics (now defunct) in the summer of 2001.

A year later, I got run out of my think tank for my public refusal to support the upcoming Iraq War (wrong war, wrong place, wrong time, wrong enemy) and what I’d come to see as the Bush/neocon delusion. America’s Benevolent Hegemony. Democracy Dominos for the Middle East. Pax Americana.

Rubbish.

And now it’s well over a decade later, a decade of chronic failure and hideous waste perpetrated by smug, self-referent elites with a dismally limited sense of reality, an unconditional love of their own theories and strategies, and a motto of “Being a conservative means never having to say you’re sorry, or wrong, or even oops.”

But now it’s time to shrug them off (not to worry, they won’t starve) and go to war, whatever your domestic politics, against a clear and present danger to world civilization, including the Islamic. It’s not just that there have been game changers. It’s that the whole game has changed. Violent Islamism, which delights in declaring war on us, is running up the score. But between Western political paralysis caused by a dysfunctional center, an impotent-chic left and a metastatic right; between steady mass impoverishment and elites whose attitude is “My half of the boat ain’t sinkin’” – and all that for-profit culturally-fostered mass disgust and weariness . . .

It’s still time to declare war.

Now, no country is about to declare war on Islamism, or even do what it takes to win. But a couple what-if’s might be apt.

Article I Section 8 of the United States Constitution gives Congress the power to “declare war.” This authorization does not specify against whom war might be declared, or the format of such a declaration. Nor does a declaration obligate you to do anything in particular.

But it does establish a juridical framework. The enemy is named. Nations, traditionally. But trans-national organizations and their subsidiaries, enablers, formal accomplices and wannabe individuals, foreign and sometimes domestic, are not for that reason automatically exempt. Surely America has enough clever lawyers to work this out.

The advantage: a formal declaration eases extradition, expulsion and loss of citizenship procedures. Importantly, a declaration defines the enemy as de facto legitimate combatants. This takes them, if captured, mostly out of the civilian legal system and into the world of the Geneva Conventions, entitling them to all the protections thereof.

Including the right to be interned humanely until the cessation of hostilities.

Israel’s legal situation is different. The country has lived under a complex, often tendentiously argued set of emergency laws and practices since the Mandatory period. Curiously, “declaration of war” doesn’t really appear in Israel’s “Basic Law: Government.” In the official English translation, “Declaration of War” appears on the subject guide to the left. But Section 40 states:

“40. (a) The state may only begin a war pursuant to a Government decision. . . .”

Section (c) deals with Government requirements to notify the Knesset afterwards.

Begin? Not declare? A mistranslation from the Hebrew?

Whatever the semantics, there is no reason why states cannot declare war against non-state entities, except that it has never been done. Perhaps it’s time. If so, it’s certainly also time to remember that international law, as well as the jus in bello of the Just War tradition, requires not just protection of non-combatants, but an absolute discrimination between combatants and non-combatants.

Possible?

And if so, what might it mean for Israel?  The Muslims? And the world?

 

Wrap it up next time.