The Golden Age:

Andrew Sullivan writes (emphasis added):

Emails are running overwhelmingly in favor of the "abusive and degrading" treatment of detainees, as cited in the Schmidt report. And they are in favor of narrowing the definition of torture to the extremes that the Bush administration has done. Here's a typical email:

"McCain is right -- it's our reputation that matters here.

And, if you're fighting fanatical terrorists, it's good to have a reputation for aggressive interrogation techniques. As long as it's within the law, JUST DO IT. That's what the Administration has done, and more power to them. Degrading treatment and aggressive interrogation techniques designed to open hearts and minds are all admissible under the law, as long as it's not torture, and that's as it should be.

Welcome to America, Andrew. I think you'll find that a vast majority of the American people want our lawyers to tell us the limits of the law. Americans don't want the French or the Swedes or the Germans to define the limits for our interrogation techniques during GWOT. Nor do they want those limits to be defined by the liberal salons in NYC and San Francisco, or their silly liberal op-ed writers. And torture has a legal definition which should not be allowed to be dumbed down by the sensitivities of talking heads, bloggers, literati, and glitterati. That's American, and it's good.

Short of torture, I'm glad that they're doing what they can and should to break these awful men. That's a good reputation to have in the Arab world -- screw the cultural sensitivities of the European softies. They're not with us in this war, so bother them all.

Soon, I think the Paki-bashers in merry old England will blow up a mosque or two. And they will do that because they don't have any faith in their authorities taking a hard line on English terrorists. I don't think that will happen in America, but it may if we get attacked too.

I fear this is the popular view. America is not the America it once was. But a couple of points: much of this is against the law, unless you believe that the president can change the law as he sees fit in wartime. Most do. As another emailer put it, "The Bush Administration will not be harmed by these reports of torture. The country has spoken and it does not mind. The pictures and actions are very American."

Is there really reason to think that once upon a time, Americans were less willing to support harsh treatment -- I haven't read the report, so I don't know how harsh, but let's interpolate from Sullivan's correspondent's message -- of suspected terrorists than they are now? When was this time, and how long did it last?

Perhaps it might have happened during World War II, when the issue involved German soldiers captured during normal operations, fighting in uniform, though I'm not even sure that this is so; but would it have happened as to enemy combatants who are suspected of being involved in clandestine, plain-clothes attacks (which as I understand it describes many and likely most of the Guantanamo detainees)?

My suspicion is that there was no such time, and that if anything the public condemnation of harsh treatment is greater than what we'd likely have seen in earlier eras. But I may well be wrong; I'd love to hear from people who have actually studied this matter.

Incidentally, none of this tells us what the right rule is, and whether Sullivan or his correspondent is right on the merits. My question here is solely related to whether America is worse, better, or the same as it always has been on this point.

Reader 2304:
I have no special expertise on the matter. But it seems to me that it would be difficult to compare the current attitudes with past attitudes, due to the internet, digital cameras and the ubiquity of the media that has bombarded the public with images and details like never before of how we are treating the people we detain.

How would the WWII generation have reacted back then to instantly-rendered color pictures like those taken at Abu Ghraib? I have no idea.
7.14.2005 9:08pm
Rick Ballard (mail):
You might want to disguinsh between treatment of legal combatants and treatment of illegal combatants. Even wrt legal combatants treatment was dependent upon whether the enemy was adhering to genreally understood rules of warfare. There were very few - perhaps no - POWs taken on Iwo Jima. There were very few German machine gunners at the Bulge who made it to POW camps - they had an irritating habit of running out of ammo and then throwing their hands up. Not too successfully.

Illegal combatants have always been subject to summary execution and such execututions were very common during the Civil War. And then there is the issue of the treatment of Native Americans in general. Mr. Sullivan would apparently be very surprised at how abrupt and lacking in procedural nicety American conduct in war has actually been.

Generally, when people are trying to kill us, the favor is returned in spades. Perhaps he never heard of Wounded Knee, Fallen Timbers or Hiroshima.

I would say that we are much softer with the enemy today than we have ever been before.
7.14.2005 9:18pm
MK2 (mail):
I agree with Reader 2304; we're dealing with a whole new level of public knowledge and direct imagery. I don't know if it's possible to make a fair comparison.

I do think that there are two conflicting deep rooted American beliefs at work here: American exceptionalism and American pragmatism.

1. We are the good guys; honorable, loyal, virtuous.

2. If we need to torture people to get the information we need to defend ourselves, so be it. We may not like it, but there's no other way.

I think the truthfulness of the second point is extremely up in the air. But if someone believes that, it may be a more persuasive argument than the first point.

7.14.2005 9:19pm
Mr. Bingley (www):
I was just re-reading one of Shelby Foote's books on the civil war (Red River To Appomattox) and he tells of how the Union Army was slowed in moving its gunboats up the James by electronically-controlled explosive charges that the Rebels had placed in the river bed. After having one boat blown up, they were understandably loathe to try and move any more ships up the river to attack Richmond. Well, these bombs were detonated by wires that ran out of the river into the rushes on the side, and a landing party managed to capture one of the fellows who had planted the bombs and was waiting to set them off, and he refused to tell the sailors where the other charges were in the river. Well, fine they said, you don't have to tell us...and so they locked him below deck in the fore-most cabin of the next gunboat they were sending up the river.

He very quickly told them where to find the rest of the bombs.
7.14.2005 9:26pm
Several years ago I heard Richard Posner debate Jed Rubenfeld about the meaning of the First Amendment. Prof. Rubenfeld was trying to articulate some unified theory of the 1st Amendment. In contrast, Judge Posner basically said there was no underlying theory; rather, it should be understood pragmaticly: namely, that we tolerate things (in that case, if I remember correctly, seditious speech, in this case, harsh treatment of suspected terrorists) along a sliding scale — from being more tolerant in times of peace to less tolerant in times of war.

If that's true (and he was certainly able to back his opinion up), and our tolerance for seditious speech is comparable to our tolerance for harsh prisoner treatment, then I suspect that Posner would think that Sullivan is both right and wrong. Yes, there were times when there would have been more opposition, but Sullivan is wrong to compare now to more recent times of peace.
7.14.2005 9:29pm
Edward A. Hoffman (mail):
I don't read Sullivan's comment the way Eugene does. I think Sullivan meant that, in the past, the American *government* would not have countenanced the tactics allegedly being used at Gitmo -- even if the majority of Americans would have approved of them. His view seems to be that America used to stand on principle but that it no longer does, and he fears that most Americans don't care about this change.

I'm not saying I agree with Sullivan, though. I think he has a point, but I also think he has overstated it quite a bit.
7.14.2005 9:31pm
Al Maviva (mail):
Torture and abuse have been defined so far downward by left leaning human rights activists, that the terms are nearly meaningless at this point, except to some lawyers who have actually bothered to read the law. Fairly rough interrogation techniques - degrading and somewhat inhuman but not torturous - are traditionally permitted under the customary and traditional interpretations of the Geneva Conventions among Western nations. Defining torture and abuse downward - interpreting the Conventions with an excessive literalism never before applied or by applying artificially high floors for our behavior - will effectively prohibit interrogation. One of Prof. Balkin's posters describes a female interrogator acting seductively and whispering to a captured AQ fighter about his plight as an extra-legal activity that is at least abuse, if not torture. Have we gotten that prissy? Is that the kind of thing that will inflame the rest of the world against us?

The goal of this approach seems to be to hamstring military efforts to gather information in the GWOT impossible. Is that a goal of the left-leaning groups? I can't say for sure yet. But the multiplying demands about the terms and conditions of detention are a bit constrictive.

For example, last month Senator Leahy said that it violates federal law to send AQ detainees to a country where they might be tortured. This obviously rules out repatriation to the countries of origin of most AQ fighters - Egypt, Saudi, Yemen, Pakistan. Within seven days of that announcement, House Minority Leader Pelosi said it was criminal to detain captured AQ fighters, without trying them in the federal courts - an act prohibited by the Third Geneva Convention but I'll take her at her word for now.

So please tell me, my left leaning friends, what should we do with the captured AQ fighters - send them to Vermont and San Francisco on an "R" visa? And please, give me a real answer, rather than "not what we are doing now."

All the criticism in the world is wonderful, but without offering a credible alternative, most of this criticism is just so much blather. It's not like the threat will go away if we completely ignore it - most of the people held at Gitmo and at other facilities have gone through a couple administrative tribunals to verify their identity, and the little fish get let go. So the folks held in long term detention are, for the most part, problem people we have to deal with.

Were anybody to pose a credible alternative, I'd get behind it. But I haven't a clue about how to get information out of captured AQ fighters without at least some coercion, and I haven't a clue how to dispose of captured AQ in a manner that is both within the law, and which would please the left. I am all ears.
7.14.2005 9:41pm
Rick (mail):
Try reading Citizen Soldiers or Band of Brothers. By the testimony of American soldiers, uniformed German prisoners were shot frequently in World War II. Partisans would be shot without a second thought. So ya, it is different, none of these guys that we are worried about torturing would have made it to prison during World War II. When people have ultimate power over others, that power is always abused. It is a sign of what a sensitive times that we live in, that people are concerned. I think that this is a good thing.
7.14.2005 9:51pm
Coercion is just fine. A few years ago a group of men and women voluntarily sealed themselves in a self sustaining habitat somewhere in Arizona I believe. They had the minimum amount of calories available to survive. When they finally opened up their habitat they came out a lot slimmer and a lot testier. It is reported that people who live on this minimum calorie diets csn prolong their lifespans so how brutal could it be.

I think these AQ types just laugh at having to wear ladies scanties. This is torture...? I vote that we put them on minimal calories. It will prolong their lives and they will feel like they are in hell.

The minimal diets should be administered in cells that are next to the kitchen where bread, meat and other fragrant delicacies are prepared.

They ought to put televisions in their cells that show cooks preparing middle eastern delicacies.
7.14.2005 9:52pm
Smaack (mail):
"America is not the America it once was?" Is he talking about the America that once was that interned every American of Japanese descent on the west coast in internment camps? I guess he must be right, since we have yet to intern muslims the way the America That Once Was would have done.

Has Sullivan read any American history at all?
7.14.2005 9:53pm
Occam's Beard:

Perhaps it might have happened during World War II, when the issue involved German soldiers captured during normal operations, fighting in uniform, though I'm not even sure that this is so; but would it have happened as to enemy combatants who are suspected of being involved in clandestine, plain-clothes attacks (which as I understand it describes many and likely most of the Guantanamo detainees)?

The German U-boat saboteurs could shed some light on this, if all but two of them, IIRC, hadn't been tried (by a military tribunal - precedent? Could be!) and fried within a couple weeks of their capture.
7.14.2005 9:53pm
SamAm (mail):
The US Army imprisoned thousands of German and Italian soliders on American soil in camps where the treatment they recieve was comparatively (and perhaps absolutely) better than that meted out to inmated in Guantanamo (or, certainly, US or Soviet prisoners in Germany). See this article for more (though it's probably overly sentimental).

A couple things stand out. The Geneva conventions were followed. All of the Germans and Italians there were guilty of taking up arms in service to a muderous ideology, against the US, while there have been innocents imprisoned in Gitmo. They were placed, in this case, in the countryside of the state of Mississippi, whose citizens and the members of their familes had been killed and injured by those soldiers and their compatriots, and whose cause was a greater exestential threat than even AQ is today. There were 25 generals and various other officers imprisoned there, who would no doubt be considered HVTs in today's environment. The article mentions the attempted escape of several POWs, who were discovered eating lunch in a nearby restaurant. Not the actions of 4 men afraid of the surrounding population.

Now, again, the linked account probably skimps on the gory details of the treatment of Germans, the soldiers here were in uniform and may not have been Nazi Nazis, not every surrendering German, or even every captured German made it to a POW camp, much less POW camps in America, treatment of Japanese soldiers and Japanse-Americans was worse and the nebulous and American-civilian killing tactics of AQ make their adherents particularly fear inducing.

But, as a historical example of treatment better than the prisoners at Gitmo (not to mention those at Abu Ghraib, Bagram, or other locations overseas or those extraordinarily rendered) recieve, it is one. It seems bizzare to me that random Afgans handed over by the Northern Alliance, or Iraqis picked up in sweeps should be treated better than Whermacht generals.
7.14.2005 10:09pm
SamAm (mail):
Whoops, "treated worse than..."
7.14.2005 10:16pm
Taeyoung Jensen (mail):
Re: "the American *government* would not have countenanced the tactics allegedly being used at Gitmo"

I think this may be true, but then, I think the government is a lot bigger nowadays and exercises a lot more political oversight of military conduct than it did in WWII or WWI. Or the Civil War, certainly. The question shouldn't really be whether the government countenanced the tactics alleged in Gitmo (or even the tactics verifiably used at Gitmo, since many people believe even the public stuff is torture). The question ought to be whether there's any reason to believe the government would have countenanced it if it had promulgated firm guidelines. And enforced them.

Reports of American summary executions and prisoner abuse in WWII are, frankly, so widespread today -- and credible too, I think, not just leftist (or neo-Nazi) ranting -- that I would find it incredible that the government, or at least military high command, was not aware of the problem. The conclusion I would draw is that if they thought it was a major problem, they'd have stepped in. Indeed, I'd be somewhat surprised if they didn't step in to discipline soldiers, in at least a few cases.

On the flip side, the fact that the current government has stepped in with an explicit policy, for Guantanamo, and at the highest levels too, indicates a new concern that if we leave our soldiers discretion, they may overstep civilised bounds.
7.14.2005 10:19pm
Taeyoung Jensen (mail):
RE: "It seems bizzare to me that random Afgans handed over by the Northern Alliance, or Iraqis picked up in sweeps should be treated worse than Wehrmacht generals."

The nature of asymmetrical warfare is that the enemy, acting singly or in small, informal groups can make havoc for us. Contrast with a Wehrmacht General. He's not all that frightening without his, um, Wehrmacht behind him. Where's his Wehrmacht? Well, it's over in Germany. Under our military occupation. How much harm can he do, if he escapes with no army? Not a whole lot. A guerilla fighter is quite different.
7.14.2005 10:24pm
John Schulien (mail):
If the Guantanamo detainees (mostly third party foreign fighters captured out of uniform either attacking civilians and/or soldiers or planning such attacks) had been captured during World War II, I strongly suspect that virtually all of them would have been treated as spies and summarily executed.

Wasn't that the policy?
7.14.2005 10:36pm
tom f (www):
So many of the detainees currently at Gitmo are low-level. The important terrorists were moved off-site (to Egypt, for instance) before the Supreme Court had the chance to decide whether detainees had the right to challenge their detentions in court.

What upsets me (as a member of one of those "liberal salons") about the allegations of torture at Gitmo is -- we don't have any clue as to who we're torturing. These aren't German soldiers in uniform. For all we know, they're guys who got picked up in Afghanistan because of some Northern warlord's vendetta.

A number of detainees from Gitmo who have been returned to their home countries have been released by those governments (England, Spain, and Australia, to name a few). I'm all for humiliating people who have important information that will help our government save innocent lives -- but i'm emphatically not for our government humiliating people in front of a world audience when that humiliation will do nothing to help us.
7.14.2005 10:41pm
SamAm (mail):
My point, if I did not make it clear enough, was that it's strange and indefensible that innocent civilians in custody might be treated worse, by design of government policy, than high ranking officers of our sworn enemy in the same position. And unlike the strategic bombing we saw during WWII, for which there was a clear and unique purpose, killing Afgan cab drivers doesn't seem to move us any closer to actually winning the war.
7.14.2005 10:41pm
Rob Lyman (mail):

The soldiers and generals of the Wehrmacht were treated so well because

1) they were "honorable soldiers" who were doing their duty to their country. They wore uniforms, avoided deliberate murder of civilians, etc. The ideology they fought for wasn't relevant so long as they followed the laws of war. They were not considered responsible for their civilian leadership, any more than our soldiers and generals are responsible for theirs. The laws of war dictated that we treat them well, so we did.

2) The ordinary soldiers (not the generals, obviously) were often conscripts. It would be grossly unfair to abuse them when they had no choice but to fight.

3) We expected, and for the most part received, reciprocal treatment for our soldiers. German POW camps were no picnic, but they were decent and far better than their other camps. Contrast this with the beastly treatment that German POWs got at Russian hands--and the corresponding mistreatment of Russians at the hands of the Germans.

None of these rationales apply to AQ.

The "level of threat" that an enemy poses has nothing to do with how you treat his soldiers after capture.
7.14.2005 10:45pm
Rob Lyman (mail):

I did, of course, assume that the detainees at Gitmo are members of AQ. It is indeed "indefensible" to detain innocents long term, but in that case I'd say the quality of their treatment isn't the issue so much as the detention itself.
7.14.2005 10:50pm
John Thacker (mail):
The Japanese in WWII had a reputation of refusing to surrender, and of faking surrender and then still fighting. American GIs responded by shooting Japanese who attempted to surrender.
7.14.2005 11:02pm
I think the main question is has American changed. I know this has been joked about/criticized before, but millions of Americans voluntarily undergo similar treatment in fraternities and sororities across the country, and I suspect that much of the same critics of Guantanamo are critics of the Greek system. Granted voluntary is a key point, and at the end the soldiers and the detainees aren't sharing some brews. But the point is would Americans have tolerated this in the past, and frankly I think they would have considered the prisoner treatment immature, childish, and stupid. The same way they would view a lot of fraternity hazing. They would think Lyddie England and her boyfriend were a couple of jackasses who certainly don't belong in a uniform. And they probably would have supported any means necessary of getting information out of detainees.
I just want to know why this guy isn't in charge.
7.14.2005 11:07pm
David [.net] (mail) (www):
Here's a 1945 newspaper I ran across on Ebay.

Front page series of photos show the excution of a Nazi spy by a US firing squad at the end of WW II. The Nazi soldier was posing as a Polish civilian when he was caught!!

It's hard to read the caption on the photo, but it appears he was an officer in the Thirty-something Volks Grenadier Division. He was out of uniform, and got what such people got.
7.14.2005 11:07pm
Taeyoung Jensen (mail):
"Innocent civilians in custody might be treated worse, by design of government policy"

I wouldn't say it's by design at all. The government isn't interested in incarcerating innocent people -- why would it be? At most, there is an inadequate initial procedure with which to determine whether these are the men we want, sort of like there was inadequate procedure for rounding up Japanese civilians in California during WWII. But that's not a problem regarding torture per se, that's a problem of insufficient certainty in identification.
7.14.2005 11:08pm
Josh_Jasper (mail):
What's differnt is that so many of our prisoners are not ever going to be released, and have been abused multiple times, not for information, but for revenge.

That's what this is really all about, as was the killing of Japanese and German soldiers during WWII.

Revenge. People who rpmote torture really want revenge. They don't care about ticking time bombs, or breaking people to get information. They want revenge. And so do the soldiers in Gitmo. They've been intentionaly humiliating the prisoners there on a regular basis. Not for information, but just as a sport. For fun. And for revenge.
7.14.2005 11:34pm
SamAm (mail):

1) I doubt that was universally the case among the Germans and Italians who made it to camps in the US or Britain, especially when one considers the politicization of the upper ranks or the German military's record of adherance to the laws of war.

But more importantly, there was no way for the US military to know that was the case when taking prisoners in.

2) Certainly more the case for German soldiers than members of AQ, but not without application to some percent of the Taliban and Iraqi insurgency. Every army, even the Taliban and Iraqi insurgency have conscripts. Are they more culpable than the average German soldier? Of course. But the disparity isn't enormous.

And, again, we're using a harsher brand of interrogation at the camp where we don't know that everyone imprisoned was a member of our enemy's ranks. And this is just Gitmo, there are other locations where the treatment is worse.

3) I suspect this plays a large role in the military's change in policy. The MAD of prisoners that both the US and Germany wanted to prevent doesn't have a parallel in the current war, thus changing the military's view of what's permissible. Mostly for the worse, it seems to me.


The system conflates what's known by high ranking members of AQ with what's known by lower ranking ones. Why wouldn't that also spill over for non-AQ picked up? Start with the assumption that everyone coming to Gitmo is a terrorist whose worth to intelligence can be extracted by a specific policy of interrogation and everyone will be treated in the same manner, really guilty, guilty, and innocent.
7.14.2005 11:35pm
See"> for FDR's treatment of non-uniformed spies in WWII, including naturalized US Citizens.
7.14.2005 11:35pm
Paul lEngel (mail):
"War is hell" and it does unexplainable things to people. My favorite story along these lines was regarding the "Battle of the Bulge", where for a short time it seemed the outcome of WWII hung in the balance and we were periodically outnumbered.
During the battle several Germans were captured and the commanding officer detailed a few soldiers to escort the prisoners back to a POW camp. The walk to the camp would have taken three hours one way. The officer told the guards he wanted to see them back within two hours. Everybody knew what he meant and the guards were back - alone - well within the designated time limit.
7.14.2005 11:40pm
Paul lEngel (mail):
During all the wars fought in my lifetime, any combatant captured in civilian clothes was usually shot on the spot. This was by both sides, including ours, when we were involved. The detainees in Cuba and elsewhere are fortunate to be alive.
7.14.2005 11:43pm
Bruce Hayden (mail):
I suspect that those of you complaining about holding innocents at Gitmo have any real basis for the position that we indeed do have some such there.

The problem is that it is a major undertaking to get a prisoner there, halfway around the world. And, as a result, the military has to be pretty sure that they are true insurgents, and not just picked up in some sweep. According to some who have been involved in this, each transfer is reviewed up the chain of command from battalion up, with the area commander eventually signing off - probably at least a three star. And then there is an independant evaluation. If they weren't shooting at us at the time, there has to be some sort of coorboration.

So, the myth that they haven't had a hearing is just that, a myth. The problem, of course, is that it wasn't according to the rules of evidence, etc., that we are used to here in the U.S. Rather, it is done by military law and procedure. But every one of those in Gitmo has had one or more hearings. They were just military, not civilian, hearings.

Of course, if you are going to insist on civilian style hearings, or indeed, civilian trials, you are going to face immense obstacles. Are you going to ship back to Gitmo all of the soldiers involved? All of the indigs involved? As with shipping the prisoners to Gitmo in the first place, this would involve shipping all these witnesses half way around the world, just to send them back. Not the best thing for unit effectiveness.

That of course doesn't add in the effect that this might have on the troops, and, in particular, on their williness to take prisoners in the first place. How many potential prisoners would die as a result of some grunt going through the calculation that if he shot some potential prisoner making some threatening move, he might avoid just this sort of thing, being separated from his unit and dragged back to Gitmo to testify.
7.14.2005 11:47pm
Josh_Jasper, did it ever occur to you that a soldier on a battlefield is a tad busy trying to stay alive and keep fighting? Bayonetting every Japanese "body" you pass to kill the wounded was common. It was NOT revenge. It was practical; too many times, an apparently dead body would spring up and kill our guys. If you think that our guys should ignore such behavior and just accept unexpected death, well fine. But the Marines in WWII decided a simple way of avoiding that was to lance each body they saw--just to be sure.

A soldier or Marine may simply be too busy carrying out a vital mission to capture someone. The guy surrenders. Our guy can A. screw up his mission by taking care of this guy (offering him tea, perhaps) or B. shoot him and keep on with the mission at hand. That's not revenge; it's weighing costs and benefits.

There are all sorts of stories from WWII like this, like surrendering SS officers whose heads were split open like melons (amazing what an entrenching tool can do) in front of their men. Or concentration camp guards, which our guys turned loose unarmed amongst their inmates. You should see the picture of the result; their faces had unnatural protrusions from broken jaws and facial bones. And that was the guys that lived through the experience.

Imagine if that stuff were reported THEN like the Gitmo and Abu Graib stuff were reported NOW.

Andrew Sullivan apparently lives in an alternate reality.
7.14.2005 11:49pm
Bruce Hayden (mail):

Probably back within the two hours, after taking an hour and a half off.
7.14.2005 11:49pm
Barry Dauphin (mail):
Whom would Andrew Sullivan like us to emulate? Britain? France?
7.14.2005 11:56pm
Jeff V.:
If we want to talk about American public opinion and its tolerance for violence during wartime, after WW2, a strong majority of the American populace wanted to summarily shoot the top few thousand Nazis. The idea actually was debated by FDR cabinet members.
7.15.2005 12:21am
Arthur Harden (mail):
This is an interesting question, but maybe not just in terms of how we view torture. Maybe it has more to do with how we define abuse generally. It would seem for the extremes we approach some kind of consensus. But where are the boundaries otherwise. I would suggest that what has changed is our sense of what is abuse generally. Given that change, so has our definition of what we are prepared to accept as "right" by our government. Example. I remember very clearly, when I was in high school, one of the more aggressive and very big men in an upper class got a little carried away and threatened one of the female teachers. The solution was simple, the football coach and his assistant had a little "talk" with the fellow in the locker room. Problem solved. That was well known in the community and everyone saw it as a reasonable and "correct" solution to the problem. I can think of almost no one that I know today, who would not be horrified by such action. Certainly were it to happen today, those two men would likely go to jail. Today that is abuse. Then it was something the community considered an acceptable response to a given situation.

Our population now consist of a majority that have, in relative terms, had almost no experience with life that could, almost daily, threaten one's existence -- e.g., such as those who survived the 30's, or with a society that saw physical punishment as the "correct" way to deal with a major departure from what the family or community expected. For us, now, almost any depravation seems to be unacceptable.

I make no argument for or against. I simple suggest that for better or worse, we, as a society, have changed the definition of abusive. Thus I suspect, that some of the things that we get pretty exercised about in the treatment of the poisoner, would in the past have been, to even our fathers, (if you are over 50), silly -- their own fathers likely dealt with them more harshly for fairly minor things.
7.15.2005 12:46am
TLove (mail):
The war against the regular German army was fought within shouting distance of the rules of war, because by and large the regular German army kept within shouting distance themselves.

The rules of war were ignored uniformly against the Japanese and frequently against the SS because they didn't pay any attention to them (particularly the Japanese, who never ratified any of the Geneva Conventions).

The canary in the coal mine for war rules is whether medical personal keep their identifying red cross insignias on. In Europe they did, because such insignias tended to be respected by the Germans. In the Pacific, the first thing you did as a medic was paint over the red cross, as the Japenese made a special effort to take them out.

Andrew Sullivan would be appalled at our willingness to do unto others as they did unto us. Perhaps that's the America he's so wistful about?

Have the Gitmo guards sawed anyone's head off yet?
7.15.2005 1:04am
CharleyCarp (mail):
The government isn't interested in incarcerating innocent people -- why would it be?

Because even innocent people can have information that is useful to interrogators, working to put together a mosaic. Because it's not always easy to tell who is innocent and who isn't.

I think Sullivan is overstating, but understandably so. You can talk about Dresden, Wounded Knee, that place in Korea, and the Japanese internment all you want, but the fact is that the America into which Sullivan immigrated had acknowledged that these were errors, and represented serious failures to live up to our ideals. Many of us have not changed our minds about these mistakes of the past, and are saddened by the mistakes of the present.

I guess what saddens me most of all about them is that they -- each of them -- represents a serious defeat in the public diplomacy part of the war, which is every bit as important as the military part.

And spare me the talk of uniforms. What uniform is Judge Green's 'little old lady from Switzerland' supposed to wear? The US claims the authority to hold her, indefinitely, without legal recourse under either US or international law. What uniform were the Bosnians supposed to be wearing in the courthouse, where they were kidnapped by US authorities immediately after being ordered released, by a Bosnian court, for lack of evidence? What uniform were the British businessmen supposed to be wearing when arrested on the way to Gambia?

(I am married to a German. Two of her uncles were POWs during WWII -- the one is US custody had a much better time of it, and fond memories to share with an American nephew-in-law 40 years later. The one in Russian custody stayed there for years after the war, and never recovered. We may not be, or have ever been perfect, but I'd put our record against anyone else's).
7.15.2005 1:05am
Stephen M (Ethesis) (mail) (www):
A couple of things.

When you watch an old movie and they talk about giving them "the third degree" they meant beating the guy with a rubber hose under a flood light. Police interrogation of that sort was common enough to be a trope in movies.

I think we are better off for that no longer being the case.

The real problem, everything else aside, is that in conventional war, by the time you get a prisoner to someone who can use the intelligence, 99% of the time there is nothing worth getting left. In addition, torture generally breaks those who decide to cooperate and their information becomes useless.

It then becomes both easy and appropriate to have rules against interrogation at all.

In the war we are fighting, the prisoners retain useful information. Names, who is related to who, intelligence of the classic kind. It presents a terrible temptation.

I think that we are not facing the real issues, or discussing them fully, and are in the grip of a combination of technique (where you degrade the will rather than breaking it) and situation (useful information is still possible) that presents us with temptation that we are not thinking through before giving way to it.

The entire area needs a great deal more thought.
7.15.2005 1:09am
Martin (mail):
It seems to me that the discussion is missing part of Sullivan's point (and therefore of Volokh's question). While I haven't studied the subject, my intuition tells me that there is a difference, as a matter of psychology and cultural practice, between the immediate or prompt killing of captured enemies on or near the battlefield (for reasons of apparent military necessity, convenience, anger, or whatever) and torturing enemy soldiers or other combatants who have been removed from the battlefield and incarcerated (whether the torture is done for reasons of interrogation, sadism, deterrence of others, or whatever). Even a casual reading of relevant history shows that American soldiers fairly frequently killed prisoners during World War II though my impression is that, at least in the European theater, proper treatment of prisoners was much more common. However, was there any significant practice of deliberately torturing (under either a narrow definition of torture or a broader one) prisoners who had been removed from the battlefield and put in a prison camp? If not, this might reflect a change in American attitudes and behavior (although comparisons are weakened by the differences between WW II and the present war).

(Interestingly, most commenters in this thread seem to know something about WW II practice. Does anyone know anything about WW I, Korea, Spanish-American War, etc.? And perhaps more relevantly, what about past counter-insurgencies such as the Phillipines after the Spanish-American War or the counter-insurgency aspects of the Vietnam War?)

I don't know the answers to these questions, but maybe some commenter does.
7.15.2005 1:15am
CharleyCarp (mail):
which as I understand it describes many and likely most of the Guantanamo detainees

Honestly, Prof V, you should examine the factual bases for this assertion. It certainly does not describe the government's stated policy.

You'll notice that the government has not been releasing statistics on who the prisoners are, where they are from, and why they are there. Instead, they tell selected anecdotes about one or two prisoners. It would seem, then, that your supposition above is based on faith alone.

Note, though, that nearly all of the gitmo prisoners who are citizens of European countries have been released, and virtually none of those who are citizens of countries on the Arabian peninsula. This is because of leverage by their home countries, not evidence or adjudication of some sort. The "justice" inherent in this kind of process is obvious to everyone involved, particularly to the prisoners still being held.

When the government is finally forced to follow Rasul, and it will be, you'll be surprised to see how few prisoners the government will be willing to put on trial, and how many will be simply released. (My gut guess right now is that 20% at most get tried -- but that could be way overstating).
7.15.2005 1:20am
Proud Generation Y Slacker:

Presumptuous. You think the only reason the military might not want to try certain detainees in a civilian court is lack of evidence?
7.15.2005 1:34am
SlimyBill (mail) (www):
The Phillipines, Bali, Indonesia, Chechnya, Russia, Morocco, Israel, Iraq, Turkey, Pakistan, India, Saudi Arabia, Spain, The United States, Kenya, Tanzania, and now England: battlegrounds all in what cannot possibly at this point be termed anything other than a "World War".

Ugly stuff has, is, and will continue to happen.

Call me whatever disparaging name you please, I can only respond to the "news" than men are doing nasty things to each other with an underwhelmed: "Duh".

I have tried to get upset.


How do I differ today from what I would have been, say, sixty years ago? Unknown, but my guess is that I, having not been immersed in New Age Political Correctness, would have been cheering this stuff.
7.15.2005 1:34am
CharleyCarp (mail):
This just caught my attention.


It's you who's presuming. You see anything in my comment about 'only reason'? And if you think 'certain detainees' is a fair characterization of 80% of the population, we have a different understanding of the words.


I don't know why you left Bosnia and Gambia off the list. Are they not battlefields?
7.15.2005 1:51am
Posse Incitatus (mail) (www):
In the Good Old Days, enemy combatants taken out of uniform were summarily executed.

For example, during the Battle of the Bulge, the Germans inserted special troops (Brandenburgers) wearing US uniforms to confuse and otherwise demoralize our forces.

Those captured were usually shot immediately.

Frankly, there's a lot to be said for a similar policy.

When I posted about it here I wasn't entirely serious.

Since then, however, I've come to the conclusion that it is a reasonable and very humanitarian alternative.

No prisoners = no torture. The Geneva Conventions would be honored in full and the message would be clear: If you wish to fight the US you better wear a uniform. If you don't and we take you alive, you will be killed, period.

We may not get all the intelligence we desire, but at least we can be spared the constant chorus of whining.
7.15.2005 1:55am
Taeyoung Jensen (mail):
I am wandering off-topic here, and am awfully sorry. But I haven't got anything else to offer that is On-Topic, seeing as people are piling on the examples of American soldiery violating the ordinary rules of war (e.g. do not shoot the men with white flags) with gusto.

Re:"The system conflates what's known by high ranking members of AQ with what's known by lower ranking ones. Why wouldn't that also spill over for non-AQ picked up? Start with the assumption that everyone coming to Gitmo is a terrorist whose worth to intelligence can be extracted by a specific policy of interrogation and everyone will be treated in the same manner, really guilty, guilty, and innocent."

This is a fair point, but it seems to me to incline in favour of permitting further hearings, perhaps with external (but non-public) judicial review, so as to distinguish the likely guilty and the likely innocent.

Of course, any such system is going to have a certain spillover between categories no matter what -- certainly our current domestic prison system, which is in many respects abominable, incarcerates many innocent people in appalling conditions. And I am sympathetic to an argument that we have too much spillover in the Guantanamo system at present, or at least, too few procedural safeguards to prevent spillover to a degree we find unacceptable.

But again, this is an argument distinct from any argument directly on the propriety of using coercive interrogation techniques on prisoners. The argument that because we may have too much spillover between categories, therefore using coercive interrogation techniques runs too much of a risk of coercing innocent prisoners and therefore we should never use coercive techniques seems to me to constrain us needlessly, if there is no substantive objection to the coercion itself -- as I think there is not, among the population generally, and as there does not seem (based on the anecdotes of widespread American military malfeasance reported in this thread) to have been at any time in the past. We can intervene at the first "because." All we need to do is develop better preliminary techniques to distinguish likely innocence from likely guilt. Sort of the same as the grand-jury or the indictment procedures in criminal law. Unless, I suppose, one is taking the absolutist position that any spillover is unacceptable. Which is a position some take, I suppose.


Regarding the attractiveness of interrogating innocent people coercively, I concede, I'd quite forgotten about the fact that they can have useful information just like guilty people. And many quite innocent people may have very useful information, and be unwilling to give it up without some significant duress, perhaps because it is their own family who are the ones we're after, or perhaps because they fear for their families' lives. Or comparable reasons.

That said, though, I don't think the government has all that much interest in shipping out innocent people to Cuba. That seems awfully expensive to me. I'd imagine it's a good deal more cost effective


I am curious, though, if anyone has any information on actual honest-to-goodness torture (i.e. not humiliation, not fear, not getting slapped around with a rubber hose -- I mean excruciating pain inflicted by a specialist) by American soldiery in the 20th century? I exclude 19th, because I'm pretty sure there's some horrible stuff in the wars with the Indians, and maybe the civil war. All the examples I'm seeing here are either summary executions or techniques (e.g. "the Third Degree") which used to be perfectly unobjectionable in ordinary criminal interrogation contexts, as far as I can see, and which, to be frank, are still used in such contexts by other countries, perhaps even by us. I wouldn't be terribly surprised to discover that we used clamps and the electric shock thing and even the odd bit of mutilation -- America may be special but we're not that much better than everyone else -- but I haven't heard of the like yet.

It's also worth noting that because we have female soldiers and interrogators now, there are techniques our military is using today -- sexual techniques -- that we never used in the past, and that I think our WWII leadership might well have viewed as abominable. I'm thinking of the menstrual blood thing, which seems awfully exploitative, not of the interrogatee, but of the interrogator herself. I'm pretty sure those techniques are quite new and would have been abominated by previous generations.
7.15.2005 3:09am
SamAm (mail):
Martin's post hits on something I've been thinking about, and it relates to the disturbing (and it is disturbing, it's war) story Paul relates about the Battle of the Bulge.

While those soldiers committed an act that is harsher than much of the treatment detainees at Gitmo, or even AG recieve, they had less of a choice as to what to do than we have with respect to detainees. The same is true in the similar scene in Saving Private Ryan.

The mistake we make, I think, is in viewing the treatment of detainees in the same light, of thinking that the current situation is so dire that the only possible course of action is treatment as described in the Schmitt Report, or even harsher. I just don't think that's the case, and certainly not to the degree that says we should sanction harsh (at least) interrogation techniques across the board. There is some number of people we pick up, and have picked up who are simply not worth abusing.

The problem is, the government doesn't seem to want to draw a line between people who've real information and those who don't. Now, God knows that's a blurry line. But when you legitimate questionable interrogation practices, you set them on an inexorable path to being over-used, to becoming commonplace, to become systematic abuse, torture, and even murder. It's the same with any government program; there's a creep as time progresses. One would imagine this to weigh heavily on the minds of libertarians. But I digress.

While I would concede the point that the country as a whole is less willing to cause bloodshed as it was in WWII, the details of the German prisoners is instructive. We didn't as a rule treat them brutally, or even badly at all, even the high ranking officers. And we treated them differently than we did others who were dangerous in a different way (partisans, Japanese soldiers). There wasn't one standard. The US interrogation system needs to take into account the different types of people that are brought through it, and take into account that there are both LVTs and complete innocents caught in the mix. Abuse cannot be allowed to become a standard technique. If it can be defended in specific cases (and I'm not conceding that), so be it, but there's a trend to make it SOP for everyone who gets picked up, and that's seriously wrong.
7.15.2005 3:22am
John Thacker (mail):
Note, though, that nearly all of the gitmo prisoners who are citizens of European countries have been released, and virtually none of those who are citizens of countries on the Arabian peninsula. This is because of leverage by their home countries, not evidence or adjudication of some sort.

Well, where by "released" you mean that they've been turned over to their home countries, who are then holding them prisoner themselves, yes, that's happened. All the French citizens held at Gitmo, for example, have been turned over to the French where they've been slapped into prison with little to-do. There's a wealth of articles on this.

But I thought that people specifically didn't want us to turn citizens of Arabian peninsula countries over to their home countries (whether "rendition" or no) because of the likelihood of torture. That alone (plus not trusting those countries like we do the European ones) is a sufficient explanation for the situation.

I'm also confused how you know that "virtually all" of the European citizens have been released, yet simultaneously claim that there are no statistics released about the nationality of all captives.
7.15.2005 9:40am
Mike Lutz (mail):
Ghost Soldiers
Flags of our Fathers
and you'll see why the treatment of Japanese, even those in uniform, was so violent - much more so than anything at GITMO.

The Japanese routinely engaged in fake surrender, they systematically mistreated prisoners, and they specifically targeted medical corpsmen (only in the Pacific were medics not identified by red crosses - and only in the Pacific did they carry side-arms). Actions like this aroused the Jacksonian fury of the American Marines, and the resulting fighting was vicious and no-holds-barred.
7.15.2005 11:42am
jallgor (mail):
Mike Lutz,
Read "War Without Mercy." It is a much more academic survey of the brutality that existed in the Pacific Theater than "Ghost Soldiers" or "Flags of our Fathers." I don't want to get into a "who was more brutal" argument because I would agree that it was the Japanese but your explanation for why our Marines refused to take prisoners is a bit simplistic and ignores some of the atrocities US soldiers committed. One example in the book was that after weeks of fighting (if I recall it was on Bougainville) not a single enemy POW had been taken by the U.S. One day an order was given that prisoners were needed for intellgience purposes and suddenly POW's started pouring in.
7.15.2005 11:53am
Brian Marick (mail):
People ought to take CharleyCarp seriously when he says this:

(I am married to a German. Two of her uncles were POWs during WWII -- the one is US custody had a much better time of it, and fond memories to share with an American nephew-in-law 40 years later. The one in Russian custody stayed there for years after the war, and never recovered. We may not be, or have ever been perfect, but I'd put our record against anyone else's).

My father was in the WWII German navy. The talk among the sailors was that if you were going to get captured, you wanted to be captured by the Americans.

My uncle Paul was on the Eastern front. Everyone knew what would happen if you were captured there.

They were both captured. If I recall correctly, my father described a perfectly orderly surrender. His peers had considered the war lost since the Americans entered it; they were holed up outside Marseilles; they expected to be treated well - why not give up and live?

I don't know much about Uncle Paul's capture, but what everyone knew would happen did happen. I can't imagine not fighting hard to avoid that.

To echo CharleyCarp further:

I guess what saddens me most of all about them is that they -- each of them -- represents a serious defeat in the public diplomacy part of the war, which is every bit as important as the military part.

My mother was 14 when the war ended. I've heard her say that the Americans saved her life with food aid.

I was born in the US, but we visited Germany every few years. I remember us stopping for the night in a little village in Bavaria. As Americans, we were celebrities; the mayor came to meet us.

I don't know what the American public thought of the inevitable killings and torture in WWII, but it seems like the *German* public viewed us as good guys with some bad apples. Did that have anything to do with there not being a postwar insurgency there? Beats me - but I'd bet insurgents wouldn't have had as easy a time hiding amongst a population containing my mother or that mayor as they do in Iraq.

Yes, I know that Germany is part of the West and Iraq isn't. But Germany was also a culture that had gone insane. I have no doubt our reputation for decency helped them recover. If, as I believe, a reputation for decency is a strategic advantage, it's a shame we've thrown it away because of what seems like a lack of self-control and affirmative leadership.

("Affirmative leadership": My father's experience in the camps made him believe that it depends on the leadership. If the guy in charge was decent, the camp was decent; if not, the whole thing went bad. I think a lot of people believe that in their gut. They know that a leader doesn't have to order people to behave indecently; it's enough to look the other way or make punishments pro forma. There's not enough practical difference between incitement and neutrality. Even if the administration is sincere in not wanting Bagram and Abu Ghraib, their apparent minimalist reaction is a strategic PR error, because people can just as easily interpret it as tacit encouragement. At some point in a war, you want to stop making strategic errors.)
7.15.2005 12:06pm
Bill Harshaw (mail) (www):
"America isn't what she used to be." That's true, ask any conservative who dreams of the day when America was a City on a Hill, with a moral populace, obedient children, and founding fathers who spoke directly with God.

We've a long history of Jeremiads, lonely prophets calling us to live up to our professed standards. You don't look to the Bible for facts, nor do you listen to Mr. Sullivan for historical veracity.

By the by, I recommend David Hackett Fischer's latest book, Crossing the Delaware for insight into conditions of wartime in Revolutionary America. If I recall correctly, Washington upheld higher standards for POW's than did the Brits (although he still executed Major Andre).
7.15.2005 1:51pm
Herr Marick's non-sequitur on the lack of post-WWII insurgency in Germany is silly. The idealogues were largely dead, and entirely exhausted. Had it taken years for Bagdad to fall, there might be a useful comparison.

In all, comparing WWII to the GWOT is silly. Terrorists don't wear uniforms or fight like soverign nations. Geneva rules don't work.

The real discussion should be about the methods used to identify appropriate detainees, not what happens to the ones properly detained.
7.15.2005 1:59pm
The Daily Lunatic (mail):
Whatever strange and abusive things you hear coming out of Abu Ghraib or Gitmo, you don't hear accusations of murder or severe physical abuse on the part of guards or interrogators. How many times has a Guantanamo Bay prisoner had his gonads strapped up to a car battery? How many have had eyes gouged out or hands chopped off or ribs broken?

Forgive me if I'm oversimplifying here... but if I were accidentally captured by a foreign government and wrongfully imprisoned, I would MUCH rather be forced to stand in a naked human pyramid than be a victim of serious torture. Who here wouldn't rather wear a leash and do dog tricks over sexual torture or drowning or being caged with purposely starved rats?

In answer to your question: I think the U.S. is not necessarily better than we've been in the past, but we have become a lot more public with what we're doing to prisoners and why, which is a step in the right direction whatever our history is. Odds are, if the FBI or the CIA was imprisoning and torturing people by the hundreds in the 60's and 70's, we'll never know it. As for WWII, one has to keep in mind who is being imprisoned. The Nazis may have been Nazis, but even Nazis went to war with some vague degree of civility. How do you judge proper treatment for the kind of person who volunteers to be part of a brutal terrorist and guerilla war and attacks civilian targets, instead of some teenage conscript who has no choice over what they're doing and no way to escape until the onset of battle? There's very little comparison.

In summary, if you look hard at the stuff going on at Guantanamo, you'll find that they're not just doing this humiliation stuff for kicks. They have a highly specialized system for gleaning the most factual information that they can from prisoners. They have doctors on staff to ensure that these stress regimens are appropriate and decisive. Every consideration is made to ensure that interrogation is effective and intelligent.

While I, personally, don't think interrogation is particularly pleasant, it is just a reality of war that interrogation has to exist on some level somehow. I am much more sympathetic to the view that interrogation should be made a highly specialized and documented science in America rather than outsourcing the military responsibility of active intelligence to, say, Egyptian or Israeli interrogative services.

(as an aside: there is considerable consternation about poorly-trained contractors and wild jock guards interrogating prisoners, and to a certain degree this consternation is justified. Those should rest assured that, though this has not been made completely public yet, the military is undergoing a comprehensive overhaul of their tactical and strategic intelligence forces and part of that is addressing the problem of unqualified interrogators.)
7.15.2005 2:13pm
LizardBreath (mail):
Whatever strange and abusive things you hear coming out of Abu Ghraib or Gitmo, you don't hear accusations of murder or severe physical abuse on the part of guards or interrogators.

What on earth are you talking about? Don't you remember a photograph of one of the guards at Abu Ghraib making a thumbs-up gesture next to the body of a prisoner who had been killed during an interrogation? Give me a moment and I'll google you a link.
7.15.2005 2:28pm
LizardBreath (mail):
Here's an article, click through links for the photo. Obviously the article, the first I found, is from an antiwar site, but you should remember the photograph.
7.15.2005 2:31pm
Anonymous Coward:
A reputation for reasonable treatment of prisoners made the US military more effective than its allies in WW1 and WW2 (at least in Europe).

You want the enemy to surrender; there is little cost to treating POWs well. In a counter insurgency this is even more true.
7.15.2005 3:08pm
The Daily Lunatic (mail):
Damn, lizard breath.... thanks for the link. :O
7.15.2005 4:04pm
I feel that this should be a simple question.

Do we, as a nation, want our soldiers to be treated as we are treating captured people?

It is a yes or no question, no "but they behead people" allowed.
7.15.2005 4:44pm
Anonymous Coward - you seem to think that gaining a reputation for reasonable treatment is the same as treating POWs well. Such a reputation may be undeserved (or wishful thinking, as by Sadam's troops). Equally likely, treating POWs well on the whole may result in a poor reputation, if others have a strong incentive to create another impression by focus on notorious situations, or falsehoods.

I'm not saying either is the case in GWOT, but any fool who will blow himself to bits on the promise of virgins in heaven will probably believe the worst about the folks he's been enlisted to kill, regardless of the truth.
7.15.2005 5:26pm
How did we react to all that terrorism before 9/11?:

To go back to Volokh's original question - have Americans changed in our attitudes towards torturing terrorists - I would like to point out that we actually have plenty of experience with terrorism in this country and public reaction from before 9/11, without wandering off into the interesting topic of what soldiers do in battle. My impression at the time was that everyone was nervous about our ability to convict these people or get them to reveal useful information, but took for granted that we would not be doing anything as primitive as torturing them:

The Oklahoma City bombers;
The first set of World Trade Center bombers;
Various sets of violent militants from the sixties;
Anti-black terrorists (church-bombers and assassins, not just "ordinary Klan members");
Any avowed Palestinian terrorists we had in our custody.

Again, I am not referring to or even recalling specific policies or news articles, and I don't want to spark a debate about exactly who qualifies as a "terrorist". I take Volokhs' original query to be whether our attitudes have changed. Did Americans before 9/11 believe our government should or would subject terrorists to torture, indefinite extralegal detention, or whatever other treatment we might be discussing? From my memories of the last few decades, I think the answer is that Americans took for granted terrorists would be treated as criminals, with all the usual constitutional implications.

Perhaps we are more afraid of the current threat. That may be a rational reaction, and it may justify a change in what we are ready to do to those we get our hands on. But yes, this would be a change.

7.16.2005 4:27pm
How did we react to all that terrorism before 9/11?:

Maybe none of the examples of terrorism I listed in my previous posting sounds like a good comparison to the current "War on Terrorism" in scope or level of national anxiety. How about this for the "Golden Age" Volokh was looking for: the Red Scares following each World War. I don't think that, suring either the Palmer raids or McCarthy's HUAC resulted in the commies and fellow-travellers being treated any differently than normal criminals. They were investigated, arrested, tried and sometimes executed, within the existing penal system.

Does anyone know if this country used tools against the communist fifth coloumnists analogous to those we're deploying today?

7.17.2005 9:21pm
Zev Sero (mail) (www):
Mitch, that's precisely the point - before 11-Sep-01 we did not consider ourselves to be at war. Those terrorists were treated as ordinary criminals, subject to the civilian criminal process. What changed on 11-Sep-01 was the President's recognition that the USA is at war, and his resolve to take that fact into account. So captured enemy fighters, whether actual terrorists or not, are not subject to the civilian justice system's jurisdiction; Rasul is irrelevant, because the judicial branch, including the Supreme Court, has no jurisidiction over these prisoners.

To respond to earlier comments, there are no 'innocents' being held at Guantanamo. The proper comparison is not to Germans captured in uniform, but to Germans captured out of uniform. They were dealt with by military tribunals, under military standards of evidence. Every single prisoner in Gitmo has had some sort of review by the military, exactly the standard applied in WW2. Except that they haven't been tied to a post and shot, as we used to do.

Fishbane asks: Do we, as a nation, want our soldiers to be treated as we are treating captured people? It is a yes or no question, no "but they behead people" allowed. If no "but they behead people" is allowed, then you're missing the point, aren't you? "But they behead people" is precisely the answer to your question. They do behead our soldiers if they capture them, and they will do so regardless of how we treat their people. So why, exactly, should we not treat their people however we want to? The whole point of treating enemy prisoners well is to ensure the same treatment for our soldiers, and if they won't do so, then there is no point.
7.19.2005 2:14am