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Col. Davis and the Testimony that Wasn't:

As Eugene noted below, the Pentagon did not let Col. Morris Davis testify before the Senate about military commissions. As it turned out, the military sent Brigadier General Hartmann instead, and he was "not equipped to answer" some of the Senate Committee's questions, such as whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman. Has it really come to this? More from Marty Lederman here.

AntonK (mail):

"...whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman."



Of course if would violate the Geneva Convention. US military personnel are covered by the Convention. What kind of a question is that?
12.13.2007 9:29am
GEORGE LARSON (mail):
I am not an expert on this matter, but do factors like a declared formal state of war, the air crew possibly being accused of a war crime (true or not) or Iran follows some form of Islamic Law make a difference? Has Iran signed the relevant parts of the Geneva Convention? It sounds like a clever lawyer could find ways to allow Iran to do what ever they wanted with their prisoners. Historically our captured troops have faired badly in captivity and frequently there were no repercussions.
12.13.2007 9:39am
ChrisIowa (mail):
Is this something that can be credibly answered by a Congressional Hearing?
12.13.2007 9:51am
Anderson (mail):
AntonK, what you should be saying is, "what kind of an *answer* is that that Hartmann gave?"
12.13.2007 9:58am
ejo:
for once, anderson is right. what kind of maroons are being sent up there to answer questions. george larson would have given a better answer. further, as a general matter, we would hate it if our airmen were waterboarded. of course, in the past and without any international repercussion, they have been treated in far worse ways, which kind of goes to show you the worth of international opinion and the Conventions.
12.13.2007 10:04am
AntonK (mail):
Anderson says: "AntonK, what you should be saying is, "what kind of an *answer* is that that Hartmann gave?""

Indeed!
12.13.2007 10:07am
Tom S (mail):
What if Iran arrested a CIA agent in Iran and waterboarded him?
12.13.2007 10:24am
ejo:
why would the Geneva Convention cover a covert CIA agent? That hypothetical doesn't make much sense at all.
12.13.2007 10:35am
ejo:
why would the Geneva Convention cover a covert CIA agent? That hypothetical doesn't make much sense at all.
12.13.2007 10:36am
GEORGE LARSON (mail):
"why would the Geneva Convention cover a covert CIA agent? That hypothetical doesn't make much sense at all."?

If the agent was an Iranian national captured in Iran it would not. But how would a US Citizen charged in Iran with espionage differ from one of the illegal combatants in Guantanamo? I am sure some were caught operating covertly. There are people who say all our captives in Guantanmo are covered by the Geneva Convention.
12.13.2007 10:53am
ejo:
wow, you should be up there answering questions.
12.13.2007 11:01am
Bart (mail):
What on earth does that question have to do with military commissions? The General knew he was being set up and played dumb.

The short answer is that GC3 conveys privileges against coercive interrogation to uniformed regular forces who follow the GC like a downed US airman, but not to terrorists disguised as civilians who routinely violate the laws of war.
12.13.2007 11:06am
ejo:
playing dumb has a way of making you look dumb. why not simply give the "bart" answer and make the Senators refute it. then they look dumb, not you.
12.13.2007 11:09am
JM, III:
Here's the thing about this issue - a) Iran doesn't play by the rules already, see, e.g., their treatment of the Brit seamen/women; b) this is being done to a select few who don't play by the rules. I think it's nonsense to suggest that China, Iran, or any other potential future enemy is going to act differently based on the US waterboarding al qeada. At worst, it might give them a propaganda worthy excuse for doing what they'd do anyway. Moreover, the US likely suspects our enemies will do this anyway, which is why the US subjects its military personnel to this, and worse, during training.
12.13.2007 11:32am
JM, III:
Here's the thing about this issue - a) Iran doesn't play by the rules already, see, e.g., their treatment of the Brit seamen/women; b) this is being done to a select few who don't play by the rules. I think it's nonsense to suggest that China, Iran, or any other potential future enemy is going to act differently based on the US waterboarding al qeada. At worst, it might give them a propaganda worthy excuse for doing what they'd do anyway. Moreover, the US likely suspects our enemies will do this anyway, which is why the US subjects its military personnel to this, and worse, during training.
12.13.2007 11:32am
Bart (mail):
ejo:

playing dumb has a way of making you look dumb. why not simply give the "bart" answer and make the Senators refute it. then they look dumb, not you.

The witness is a general and not a lawyer. I am sure he knew the answer to the airman question, but he also probably knew that there would be a follow up question about al Qaeda detainees which he is not prepared to answer.

Graham should have known better than to sandbag the General.
12.13.2007 11:38am
AntonK (mail):
Bart says, "The short answer is that GC3 conveys privileges against coercive interrogation to uniformed regular forces who follow the GC like a downed US airman, but not to terrorists disguised as civilians who routinely violate the laws of war."

Now there's a nice, concise statement if I've ever heard one. Thanks Bart. Should keep the Angry Left at bay, at least for a minute or two until they come up with some "reality-based" counter to it.
12.13.2007 11:55am
Lior:
The real issue here is not the merits of the General's answer.

One real issue is the fact that the military, with the support (and probably goading) of the Executive does not consider itself accountable to Congress, and hence to the people. Another is that Congress does not seem to have the spine to demand accountability from the military, and from the Executive in genreal. Perhaps Congress should de-fund all operations in Guantanamo Bay until the Executive can explain what's going on there.
12.13.2007 11:59am
J. F. Thomas (mail):
playing dumb has a way of making you look dumb. why not simply give the "bart" answer and make the Senators refute it. then they look dumb, not you.

Because the Bart answer is wrong. The correct answer is "absolutely". And the GC requires humane treatment and due process rights for all captured persons who are in a conflict covered by the GC, regardless of their status, which would include not waterboarding them (which is clearly inhumane treatment, even if it doesn't rise to the level of torture). Bart, who claims to have military experience, (but apparently with the Union Army in the Civil War), apparently slept through his course on the GC.

As for a CIA agent captured by Iran. I don't know if Iran is a signatory to the International Convention Against Torture or other Cruel, Inhuman or Degrading Punishment or Treatment, but we certainly are. And waterboarding is most certainly banned under that, regardless of the status of the victim (or their status under the GC). So I just don't understand what this obsession with the GC when it comes to waterboarding is. It is hardly the only treaty or U.S. law that is applicable. And arguing about whether it is torture or not is also an irrelevant exercise. Even if waterboarding isn't torture, that doesn't make it legal.
12.13.2007 12:06pm
Mikeyes (mail):
I'd be surprised if the BG was "Unequipped to answer" questions on the Geneva Convention. If that were true, he should not be a BG since all of his formal training as a senior officer (Command and General Staff School, War College, etc.) goes into great detail on that subject. The Geneva Convention is a standard part of the training of senior officers and the legal aspects should be familiar to him just as truck drivers know the traffic and commerce laws since they effect their every day work.

The real reason he is unable to speak to the matter is the same reason COL Davis is unable to speak to the matter: he was told not to cooperate.
12.13.2007 12:14pm
Justin (mail):
Now that the Bush Administration has announced that it is ambiguous as to whether US troops may be waterboarded when captured - is it ok now to ask why George Bush hates our soldiers?
12.13.2007 12:18pm
srg:
J.F. Thomas,

Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives? If so, should it ever be done, followed by a pardon?

As for the Geneva conventions, the Supreme court ruled that they apply to Guantanamo inmates by the ridiculous claim that "conflicts not of an international nature" (I hope I am quoting the GC correctly) includes all conflicts in which one group was not a nation, e.g. Al Qaeda, when the common sense interpretation of the GC was civil conflicts.
12.13.2007 12:21pm
Anderson (mail):
As JFT points out, the Convention Against Torture is more relevant here. I believe our own torture statute was enacted as part of our treaty obligation under the Convention?

A better comparison would be that Iran grabs a U.S. citizen it says is an "enemy combatant" and waterboards him or her. Exactly how do we argue that Iran's executive doesn't have the discretion to make that call?
12.13.2007 12:31pm
Anderson (mail):
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?

What if the "punishment" could give every boy and girl a pony? How about that?

There is no such reasonable belief as srg implies. Latest to speak out was a former head of the Defense Intelligence Agency, re: the Zubaydah waterboarding:

There are always those who, whether out of fear or inexperience, rush to push the panic button instead of relying on what we know works best and most reliably in these situations. I would caution those who would rely on this example. It is far from clear that the information obtained from this prisoner through illegal means could not have been obtained through lawful methods. The FBI was getting good intelligence from this prisoner before the CIA took over.
And there are numerous examples of cases where relying on information obtained through torture has disastrous consequences. The reality is that use of torture produces inconsistent results that are an unreliable basis for action and policy. The overwhelming consensus of intelligence professionals is that torture produces unreliable information. And the overwhelming consensus of senior military leaders is that resort to torture is dishonorable. Use of such primitive methods actually put our own troops and our nation at risk."


So -- would you use "inhuman or degrading punishment" in order to put our nation at risk? Why not?
12.13.2007 12:35pm
srg:
Anderson, it would be nice to think that torture and inhuman and degrading punishment absolutely never work. The evidence is not as clear as you seem to think.
12.13.2007 12:42pm
J. F. Thomas (mail):
As for the Geneva conventions, the Supreme court ruled that they apply to Guantanamo inmates by the ridiculous claim that "conflicts not of an international nature"

Whether or not the Guantanamo detainees were covered by the GC in the first place was indeed the question the SC wrestled with (and even I will admit them finding that AQ--although not Taliban fighters--were covered by GC is a thin reed indeed), once a person is covered by GC, contrary to what Bart asserts, they must be treated humanely and are entitled to due process rights--regardless of whether they are a uniformed combatant, spy, sabetuer, terrorist, or common criminal. Bart, and many other posters, seem to think that the GC only cover the treatment of POWs. This is patently untrue. The GC merely sets aside a huge portion of its text to lay out the very special treatment accorded to POWs. Some classes of prisoners are accorded even more rights than regular POWs (e.g., Chaplains have the option of being repatriated if they so choose).

The important first distinction, whether you are a legal or illegal combatant, determines whether you can be charged and tried for things soldiers do--like shooting at and killing the enemy. But just because you are declared to be an illegal combatant, that doesn't give your captors the right to torture you or even treat you harshly.
12.13.2007 12:42pm
J. F. Thomas (mail):
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?

The military bans it with no exceptions, that's good enough for me. If the military sees no net benefit in such practices (and theoretically they would have the most to gain from such tactics), why should I substitute my judgement for theirs.
12.13.2007 12:47pm
J. F. Thomas (mail):
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?

Is this a question of law? If that is your question, then absolutely yes. There is nothing in U.S. law, the Constitution, or any treaty that says, "cruel, inhuman or degrading punishment is banned except . . ."
12.13.2007 12:51pm
Anderson (mail):
The evidence is not as clear as you seem to think.

So, provide this evidence, then. I quote you a lieutenant general who used to run the freakin' Defense Intelligence Agency and who relies on "the overwhelming consensus of intelligence professionals."

What have you got? I would prefer sources who are not themselves facing potential indictment under the Torture Act, etc. -- they might have an understandable motive to bend the facts just a bit, to keep themselves out of prison.
12.13.2007 12:56pm
ejo:
after one rational response, the usual are back to their position-no loud music playing for terrorists, no matter what the body count.
12.13.2007 1:04pm
srg:
Anderson, a couple years ago there was a very interesting article in the Atlantic about someone in Shin Bet, I forget now whether it was the former head or someone else. I agree that torture often gives unreliable information, and I agree that there are usually better methods both ethically and practically, but when time is of the essence, then other methods may be ineffective.
12.13.2007 1:10pm
J. F. Thomas (mail):
the usual are back to their position-no loud music playing for terrorists, no matter what the body count.

Oh yeah, me, Anderson, the former head of the DIA, the freaking military of the United States. All us liberal pansies.
12.13.2007 1:12pm
Zombie Richard Feynman (mail) (www):
I've noticed a change in the rhetoric recently from "it isn't torture" to "torture is okay."

Seriously, what's going on? America won't fall if we refuse to torture. It already has if we say it's okay.
12.13.2007 1:25pm
GEORGE LARSON (mail):
The Iranian government believes their laws are from god and supersede man made law. Even if they signed it earlier, can't they renounce the Geneva Convention? Can't they claim it is okay to enslave rape, mutilate, kill or ransom prisoners of war or enemy combatants? I believe this is consistent with Islamic law, but I am not sure all or even most Muslims believe this. There are Muslim clerics who teach this. Since they may believe their captured personnel are martyrs they would not care if we mistreat our captives. I am not saying we should reciprocate, but it may be a big issue in the future. It will cloud any peace negotations and any future commercial ties.
12.13.2007 1:25pm
ejo:
yet it seems to have worked, in which case I'll take the effective procedure over their (and your) opinion. have you ever furnished your acceptable body count?
12.13.2007 1:26pm
Mark Field (mail):

Anderson, it would be nice to think that torture and inhuman and degrading punishment absolutely never work. The evidence is not as clear as you seem to think.


I suspect torture does "work" sometimes. The problem is that there's no easy way to know when it has worked and when it resulted in fantasy. That means that the results are untrustworthy in EVERY case except to the extent they can be otherwise validated.

I favor a complete ban on torture regardless of whether it might "work" in a specific case.
12.13.2007 1:38pm
frankcross (mail):
ejo, give us the body count for those saved by torture or other challenged practices.
12.13.2007 1:48pm
srg:
I share the repulsion to torture expressed here by several people.

But rationally, it is hard to see why torture, if used only to save lives, and only in cases where nothing else is working, and where time is essential, is unjustified, but killing soldiers, and even in some cases civilians ("collateral damage" when not used disproportionately) is justified.

Please enlighten me.
12.13.2007 1:50pm
ejo:
well, the CIA guy involved in the Zubayeh interrogation that has been in the press says many attacks were prevented. Obviously, you can discount this and claim he is a liar hurting people for giggles. That is the attitude some posters here undoubtedly have-Zubayeh is a poor mentally ill lost soul who made beef jerky runs for OBL while our agents are monstrous torturers. He said the guy cracked and gave up information in 35 seconds. unfortunately, there is no control group for the issue, so we can never say for certain how many people, if any, were saved. Of course, if we did nothing and the attacks went on, we wouldn't know either.
12.13.2007 2:28pm
PersonFromPorlock:

But rationally, it is hard to see why torture, if used only to save lives....

The criterion isn't saving lives, though. In every federal oath of office I've ever seen, the oath-taker swears to defend the Constitution, not the People. It's nice to save lives but saving the Constitution, and presumably the Eighth Amendment with it, is the real name of the game.
12.13.2007 2:33pm
PLR:
The witness is a general and not a lawyer. I am sure he knew the answer to the airman question, but he also probably knew that there would be a follow up question about al Qaeda detainees which he is not prepared to answer.

Graham should have known better than to sandbag the General.

Not a lawyer? Yo, isn't he the head of the JAG Corps?
12.13.2007 2:33pm
Dilan Esper (mail) (www):
Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?

I'll leave it to others to debate the moral and efficacy issues, but yes, all such treatment is banned even when it saves lives. Read the UN Convention Against Torture, it has a specific provision that torture and other forms of cruel, inhuman, and degrading treatment are banned no matter what the justification is.
12.13.2007 2:46pm
Bart (mail):
J. F. Thomas (mail):

Because the Bart answer is wrong. The correct answer is "absolutely". And the GC requires humane treatment and due process rights for all captured persons who are in a conflict covered by the GC, regardless of their status, which would include not waterboarding them (which is clearly inhumane treatment, even if it doesn't rise to the level of torture).

There is no "absolutely" about it. The GC3 only extends the privilege against coercive interrogation to privileged combatants. The US airman qualifies, al Qaeda terrorists do not.

There is no "clearly" about it. "Humane treatment" has no objective definition. Humane can just as arguably mean all treatment short of torture as it can anything else.

Furthermore, the only "due process" an capture is entitled to under the GC is a status determination. When Zubaydah and KSM both admitted up front that they were al Qaeda, the status determination was made.
12.13.2007 2:48pm
frankcross (mail):
I think Zubaydeh (who may or may not have been tortured) gave up some Al-Q names, including Khalid Sheik Muhammad. And we may have tortured him, to get the names of the non-threatening Miami bunch. I haven't seen him linked to other prevented attacks, though government commissions have discussed this at length.

We really don't know the costs and benefits with any precision, I don't think. But that's a little beside the point of whether the legislative branch should have a right to know what sorts of things the executive branch is doing
12.13.2007 2:51pm
Bart (mail):
Anderson (mail):

As JFT points out, the Convention Against Torture is more relevant here. I believe our own torture statute was enacted as part of our treaty obligation under the Convention?

This is correct. However, your problem here is that the US signed an amended definition of torture under the CAT, that it adopted nearly verbatim in the torture statute, which defines torture as the intentional infliction of severe physical or mental pain, with the mental pain being further defined as having to be prolonged. The intentional infliction of 35 seconds of panic on Abu Zubaydah during waterboarding does not cause any physical pain and cannot be considered to be prolonged severe mental pain.

A better comparison would be that Iran grabs a U.S. citizen it says is an "enemy combatant" and waterboards him or her. Exactly how do we argue that Iran's executive doesn't have the discretion to make that call?

If they catch an American who is a member of a terror group dedicated to the mass murder of Iranians, then they are free to waterboard him to gain intelligence to stop the terror group.

What is good for the goose is good for the gander.
12.13.2007 2:56pm
Al Maviva (mail):
whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman

I'd have to refer that question to the Hon. Ms. Pelosi. She seemed to have some opinions on the matter.
12.13.2007 3:05pm
Bart (mail):
J. F. Thomas (mail):

Do you think absolutely all inhuman or degrading punishment is banned even if there is a reasonable belief that it could save hundreds of lives?

The military bans it with no exceptions, that's good enough for me. If the military sees no net benefit in such practices (and theoretically they would have the most to gain from such tactics), why should I substitute my judgement for theirs.


The CIA does it for them. Stop ducking and weaving and answer the question.

Both Zubaydah and KSM were initially interrogated within the restrictions of the Army Interrogation Manual and did not cooperate. They both broke within moments of being waterboarded and give up several al Qaeda cells which were in the process of preparing for their next mass murders.

I highly recommend that you read the book "The Terrorist Watch" by Ron Kessler, which goes into great detail concerning the intelligence that Zubaydah and KSM gave up to the CIA.
12.13.2007 3:06pm
J. F. Thomas (mail):
There is no "absolutely" about it. The GC3 only extends the privilege against coercive interrogation to privileged combatants. The US airman qualifies, al Qaeda terrorists do not.

Bart, are you a lawyer? Were you in the military? If so where did you go to law school and which military did you serve in? You are simply wrong, wrong, wrong. Just like you were wrong that "prior to" the MCA officers in the U.S. military could legally summarily execute spies (and no I found your explanation by "prior to" you meant 140 years prior to the passage of the MCA unconvincing).

For you to argue that humane treatment is anything that doesn't rise to the level of torture is patently ridiculous. For you to argue that the GC doesn't require basic due process guarantees for everyone who is captured or held by the occupying country is simply wrong. You simply are making unsupportable arguments. The GC envisions that those declared illegal combatants (or spies, common criminals, etc.) will be charged with crimes and tried in a system that approximates normal due process rights accorded criminal defendants in a functioning legal system.

You may not like it but that is the way the system works.
12.13.2007 3:10pm
J. F. Thomas (mail):
The CIA does it for them. Stop ducking and weaving and answer the question.

If this is the case, then the argument that the information was time critical and necessary to prevent an imminent attack ("ticking timebomb") is hardly credible, is it? Seems that you are just torturing to get stale operational information.

So I guess my answer is still Never and what the CIA did was clearly illegal and the information they claim they obtained probably inflated to justify their atrocious acts. Just like after claiming that the tapes of the torture were destroyed to protect the identities of the torturers, one of them is willing to talk publicly about all the valuable information obtained from the interrogation.
12.13.2007 3:20pm
ejo:
you are so right, JF. the Geneva Conventions were not put in place to try to place some restrictions on warfare to somewhat reduce its harshness and ugliness. thus, it wouldn't matter to the drafters of those Conventions if people actually followed the rules-they would still get protected. after all, we wouldn't want to provide incentives to engage in proper behavior. further, they would likely have had no problem with those not following the rules getting the maximum due process rights afforded under the criminal justice system. finally, those who follow the rules would have to be suckers-after all, they don't get miranda, juries of 12 and all those other good things our criminal defendants get.

when I put it in the way I just did, does the utter backwardness of your position sink in?
12.13.2007 3:24pm
davod (mail):
J.F.Thomas:

When the SCOTUS ruled that the rat bags were covered under the GC then the ruling precludes any trials in the civilian justice system.

I imagine the GC reasoning was that a soldier might not get a fair trial in the civilian justice system of the country he is at war with.
12.13.2007 3:28pm
Bart (mail):
J.F.

I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:

1) The GC3 extends the privilege against coercive interrogation to all captures.

2) The GC extends due process rights to interrogated combatants who do not fall under the definitions of the GC3 apart from a status determination.

3) The GC offers an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture.
12.13.2007 3:30pm
davod (mail):
PS: It is my understanding that the ratbags who underwent the enhanced interrogation were not at Guantanamo.
12.13.2007 3:30pm
Anderson (mail):
srg, the point that the DIA fellow made is that even if torture "works," there are humane methods that not only work, but work *better* -- less false info, less danger of hearing what the prisoner thinks we want to hear.

The FBI has people trained to do this, but CIA insisted on snatching the prisoners away for their ghoulish "enhanced interrogations."

Kessler seems like he had his mind a bit made up beforehand -- I don't think we're going to know the truth about Zubaydah's interrogation and what it yielded unless and until the Congress develops some guts and demands it. Certainly, the proud CIA folks were in a hurry to destroy the tapes that would show exactly what Zubaydah said.
12.13.2007 3:32pm
srg:
Anderson - again, I would like to think you are right, but especially in cases where time is limited, I am not sure you are.
12.13.2007 3:34pm
hattio1:
Bart states;

If they catch an American who is a member of a terror group dedicated to the mass murder of Iranians, then they are free to waterboard him to gain intelligence to stop the terror group.

What is good for the goose is good for the gander.

What about if they suspect the American is a member of a terror group? Can they then hold them for 6 years and waterboard him in order to get him to admit he's part of a terror group?
After all, what's good for the goose is good for the gander...right.
Oh, and the Blackwater Operatives. They can waterboard them right? They're not part of a uniformed military. You have no problem with that right?
12.13.2007 3:37pm
Anderson (mail):
Btw, on another thread, Bart wrote re: Zubaydah's interrogation:

Kiriakou is identified, was there and speaks in detail.

Actually, he "said he saw intelligence reports saying that waterboarding ... had caused Abu Zubaydah to start talking after 35 seconds."

That's never been in dispute; it's what Zubaydah said, and how useful it really was, that we need to know. Suskind went into some detail on that; Kirikou hasn't.

Kiriakou's claim that Zubaydah's info disrupted numerous attacks is based on hearsay. Give the years that've passed since the capture, it's time for the feds to put up or shut up on the intel we obtained and on why it supposedly couldn't be obtained by FBI interrogators.

Btw, Darius Rejali's op-ed "5 Myths About Torture" is quite good -- all 5 myths have figured prominently in VC threads.
12.13.2007 3:44pm
Bart (mail):
anderson:

Kessler has been covering the CIA for years as a reporter for both the left WP and the right Newsmax and as an independent author. He has earned a variety of journalistic awards from his largely left leaning colleagues. I am unsure what is the basis for your claim of prejudgment.

In any case, I would again recommend reading his latest book. There are two chapters of roughly 20 pages of detail about both Zubaydah and KSM. If Kessler is writing fiction, it is very detailed fiction down to the al Qaeda cell code names which were given up.
12.13.2007 3:45pm
Bart (mail):
Anderson (mail):

Btw, on another thread, Bart wrote re: Zubaydah's interrogation: Kiriakou is identified, was there and speaks in detail.

Actually, he "said he saw intelligence reports saying that waterboarding ... had caused Abu Zubaydah to start talking after 35 seconds.


I do not recall Kiriakou saying that in his ABC interview as implied by your linked article. I will have to listen to it again.
12.13.2007 3:49pm
Harry Eagar (mail):
'US military personnel are covered by the Convention.'

Anton, repeat after me: The Geneva Conventions have never, ever, not once protected an American prisoner in any of the Asian countries that have held American prisoners. That includes USSR, China, North Korea, Japan, Vietnam, Iran, Iraq, Afghanistan, Cambodia, Laos.

Anyone who brings the GC into the current debate self-identifies aa a fantasist. A legally-sophisticated fantasist, maybe, but still delusional.
12.13.2007 3:50pm
ejo:
you notice the same worthies heaping sympathy on Zubayeh (mentally ill, minor logistical supporter for OBL, wasn't breast fed, etc) save their scorn for the US and its operatives (ghouls, liars, monsters, not willing to trade thousands of american lives for playing loud music). funny how that plays out.
12.13.2007 3:57pm
Anderson (mail):
srg, cases where time is limited are the *worst* for torture. You desperately need accurate intel so you can work fast, and it's too easy for the victim to say something false that requires checking out. After he's screwed with you a few times, the bomb's probably gone off.

Where's the rebel base, Leia? "Dantooine ... they're on Dantooine."

Back to Kiriakou &Suskind: Kiriakou helped capture Zubaydah but then handed him over, &everything he heard was secondhand at best. His statement is that Zubaydah did NOT provide intel immediately after waterboarding, but rather the next day, citing an overnight visit from Allah.

Suskind writes that CIA got bogus crap out of Zubaydah until a clever interrogator started debating predestination with him and quoting the Qur'an to the effect that Zubaydah was predestined to be captured &spill to the Americans. The One Percent Doctrine at 115-17.

We don't know either man's sources, but Suskind's reporting is much more detailed.
12.13.2007 3:57pm
Anderson (mail):
Transcripts of the interview, part one and part two.

We had a group of folks-- at the agency who were trained in-- what had been reported in the press, we called enhanced techniques. I came back to the-- to the United States to headquarters to move onto a different job. But we had these trained interrogators who were sent to his location-- to use the enhanced techniques as necessary to get him to open up-- and to report some threat information.
12.13.2007 4:04pm
Bart (mail):
hattio1:

Bart states; If they catch an American who is a member of a terror group dedicated to the mass murder of Iranians, then they are free to waterboard him to gain intelligence to stop the terror group. What is good for the goose is good for the gander.

What about if they suspect the American is a member of a terror group? Can they then hold them for 6 years and waterboard him in order to get him to admit he's part of a terror group?


I presume by "suspect" you mean that the Iranians have no evidence and have not conducted a status determination. The GC requires a status determination based on some quantum of evidence such as what we have been providing to the al Qaeda.

There was no question that both Zubaydah and KSM were al Qaeda long before their interrogations. Indeed, neither man denied the fact.

Zubaydah and KS were waterboarded for information on the location of other al Qaeda, not for admissions that they were al Qaeda.

Your hypothetical is not remotely similar to US practices.
12.13.2007 4:06pm
Bob from Ohio (mail):
Harry nails it.

It is American power, not the Geneva Convention or the Torture Convention, that gives whatever protections Americans have against mistreatment by Iran or North Korea et al. It is naive in the extreme to think for one minute that our enemies give a damn about the Geneva Conventions. If a foreign government thinks planes and cruise missles will arrive, then they will think twice. If they don't fear us, then they will do what they want.

This is not 1900 with gentlemen fighting gentlemen.

Time to grow up.
12.13.2007 4:07pm
Anderson (mail):
srg, I see that Prof. Rejali (linked above) puts my above point more authoritatively than I do (no Star Wars quotes):

[Myth no.] 3 People will say anything under torture.

Well, no, although this is a favorite chestnut of torture's foes. Think about it: Sure, someone would lie under torture, but wouldn't they also lie if they were being interrogated without coercion?

In fact, the problem of torture does not stem from the prisoner who has information; it stems from the prisoner who doesn't. Such a person is also likely to lie, to say anything, often convincingly. The torture of the informed may generate no more lies than normal interrogation, but the torture of the ignorant and innocent overwhelms investigators with misleading information. In these cases, nothing is indeed preferable to anything. Anything needs to be verified, and the CIA's own 1963 interrogation manual explains that "a time-consuming delay results" -- hardly useful when every moment matters.

Intelligence gathering is especially vulnerable to this problem. When police officers torture, they know what the crime is, and all they want is the confession. When intelligence officers torture, they must gather information about what they don't know.
12.13.2007 4:08pm
Anderson (mail):
It is American power, not the Geneva Convention or the Torture Convention, that gives whatever protections Americans have against mistreatment by Iran or North Korea et al.

You could have just written "might makes right" and saved yourself some time.
12.13.2007 4:10pm
Bart (mail):
anderson:

Thanks for the transcripts. I stand partially corrected. Kiriakou's knowledge about the later Zubaydah coercive interrogation is second hand.

However, public disclosed second hand information from one who has access to that information is still far more reliable than Suskind's leaks from anonymous sources with unknown access.

The two accounts do converge on one point, though. They both discuss how Zubaydah spent a great deal of time discussing the finer points of theology with his interrogators.

Kiriakou claims that these discussions did not provide actionable intelligence.

Suskind's anonymous source also does not actually claim that these discussions led to actionable intelliegence. You posted: "CIA got bogus crap out of Zubaydah until a clever interrogator started debating predestination with him and quoting the Qur'an to the effect that Zubaydah was predestined to be captured &spill to the Americans." The clever part of this leak is that the anonymous source does not reveal what Zubaydah actually provided after being tricked. It could have been the phone number to his favorite falafel maker. Remember that Suskind's conclusion is that Zubaydah was a mentally deranged gofer who provided nothing of use.
12.13.2007 4:19pm
Anderson (mail):
The clever part of this leak is that the anonymous source does not reveal what Zubaydah actually provided after being tricked.

Actually, Suskind does report what Zubaydah handed over after being "tricked": he confirmed that KSM's code name was "Mukhtar." Page 116. He also gave them Padilla's name, leading to his arrest.

We didn't even try proper methods. A "DO chief" told Suskind, "Did it work because he was tortured first? That's the problem. Once you go down this road - and try everything - it's hard to know what worked."

As for your distinction b/t Suskind's sources and Kirakou's, I fail to understand what it is.
12.13.2007 4:23pm
J. F. Thomas (mail):

I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:

I don't know how many times I have to cite this before it sinks into some of your thick skulls


To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


12.13.2007 4:26pm
J. F. Thomas (mail):
And quote the sections of the GCs that support your claim that once a person is determined not to be a legal combatant, the GC simply does not apply to them.
12.13.2007 4:30pm
GEORGE LARSON (mail):
Long ago when I had my law of land war training I was taught I could be tried in a civilain or military court if I commit a crime while a POW. The specific example was killing a guard in an escape attempt. The Supreme Court may have a different opinion about the US response, but the enemy has the option of trying a POW either way. I also read long ago that it was legal to allow the prisoners of war to try one of their peers under their own, not the host nations, military law. I know this happened at least once during WWII.
12.13.2007 4:34pm
Bart (mail):
Anderson (mail):

The clever part of this leak is that the anonymous source does not reveal what Zubaydah actually provided after being tricked.

Actually, Suskind does report what Zubaydah handed over after being "tricked": he confirmed that KSM's code name was "Mukhtar." Page 116. He also gave them Padilla's name, leading to his arrest


This is not the actionable intelligence which provided the location of KSM used to capture him and does not contradict Kiriakou.

You have me at a disadvantage here. You appear to have your copy of the Suskind book in front of you while mine is at home. Did Suskind's anonymous sources claim that Zubaydah provided anything else?
12.13.2007 4:37pm
GEORGE LARSON (mail):
GCIII

Art 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
12.13.2007 4:39pm
ejo:
JF-if you could somehow explain why your view of things would lead to more civilized behavior, since it rewards with greater due process protections those who are not uniformed and who do not follow anything approaching the civilized rules of war, your shrillness might make a little more sense. if you give the same protections to the cheater and the non-cheater and, in fact, give the cheater greater protection, more people will be cheaters. why would this state of affairs be preferable to you?
12.13.2007 4:41pm
Anderson (mail):
Long ago when I had my law of land war training I was taught I could be tried in a civilain or military court if I commit a crime while a POW. The specific example was killing a guard in an escape attempt. The Supreme Court may have a different opinion about the US response, but the enemy has the option of trying a POW either way.

The SCOTUS hasn't disagreed; see JFT's penultimate comment above. There is nothing wrong with a military tribunal, assuming that a terrorist like KSM is an "enemy combatant" (which he isn't, but never mind for now).

But it has to be a "regularly constituted" tribunal that guarantees basic rights. The kangaroo-courts created by the MCA fulfill neither of these conditions.

Given where we stand, I would not have a big problem with trying KSM and similar worthies under straight UCMJ rules. But the Bush administration won't agree to that, b/c it's committed itself to using information that we tortured out of people, and there is no reputable court in the world that would allow such evidence. That is indeed on the top-10 list of how to distinguish a "reputable court" from the kind found in China or Burma or any number of other judicial hellholes.
12.13.2007 4:42pm
GEORGE LARSON (mail):
Art 96. Acts which constitute offences against discipline shall be investigated immediately.

Without prejudice to the competence of courts and superior military authorities, disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers.

In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of war.

Article 96 says I am wrong about POWs trying each other, but I read about it it happening during WWII with German POWs. The last sentence may have been may have been introduced after 1945. Or the trial and execution of a "deserter or Dutch resistance fighter" captured by the Canadian Army and tried by the German prisoners may have been illegal.
12.13.2007 4:48pm
Anderson (mail):
Did Suskind's anonymous sources claim that Zubaydah provided anything else?

That's all that Suskind reports, judging by the index. "Mukhtar" let us confirm that KSM plotted 9/11. Suskind at 138.

This is not the actionable intelligence which provided the location of KSM used to capture him and does not contradict Kiriakou.

KSM was not captured via Zubaydah's intelligence, according to Suskind. A Qaeda traitor gave up his location for the reward money. Suskind at 204-05.

--All this being said, I *do* hope that Suskind has left messages with his sources, trying to get their comments on the Kiriakou interview.
12.13.2007 4:48pm
Anderson (mail):
but I read about it it happening during WWII with German POWs

I believe those "trials" were conducted secretly, to punish misdemeanors and perhaps traitors. You probably can't get 3 German POW's in the same tent without an ad hoc legal code's being drawn up.
12.13.2007 4:52pm
Bart (mail):
J.F. Thomas:

I posed the following challenge to back up your claims:

I am not going to engage in a "am right, are not" spamming contest with you. These are your claims, so quote the language of the GCs which you believe support your claims that:

1) The GC3 extends the privilege against coercive interrogation to all captures.

2) The GC extends due process rights to interrogated combatants who do not fall under the definitions of the GC3 apart from a status determination.

3) The GC offers an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture.


You replied with:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Nothing here extends the GC3 privilege against coercive interrogation to all captures. Waterboarding does not induce humiliation, it induces panic. Furthermore, the US definition of torture is the intentional infliction of severe physical or mental pain, with the mental pain lasting an appreciable period of time. 35 seconds of waterboarding does not constitute torture under this definition.

Nothing here provides an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture. Indeed, you can imply that humane treatment is anything not prohibited by this section of GC, which means anything less than murder, mutilation, torture, hostage taking and humiliation. None of these limits includes waterboarding.

Nothing here discusses the due process required before you can coercively interrogate a captured enemy combatant. Subsection (d) applies to criminal prosecution of captures. In fact, the GC requirement for a status determination is the only hoop you have to leap through because all you need to determine whether the capture enjoys a privileged status.
12.13.2007 4:55pm
Bob from Ohio (mail):

You could have just written "might makes right" and saved yourself some time.


In relations between nations, that is reality.

Most countries sign these pieces of paper with no intention of ever following them.

We take them more seriously, but too many who comment here make them a fetish.
12.13.2007 5:01pm
Anderson (mail):
Furthermore, the US definition of torture is the intentional infliction of severe physical or mental pain, with the mental pain lasting an appreciable period of time.

As various commenters argued (eventually persuading me), that is not quite what the statute says. "The intentional infliction or threatened infliction of severe physical pain or suffering" is assumed to cause "prolonged mental harm." That reading hangs on the word "the" as in "the prolonged mental harm." Of course, Yoo et al. were trying to drive a truck through the statute, not construe it.

Kiriakou's interview (pp. 25-26) makes it perfectly clear that waterboarding inflicts severe suffering, as does sleep deprivation.

It's silly to argue otherwise, because the entire point of these procedures is to make people suffer so much that they "talk." If they didn't inflict severe suffering, then they wouldn't "work."
12.13.2007 5:02pm
Anderson (mail):
In relations between nations, that is reality.

A perennial mistake. Might makes might.

America has lost more by sacrificing its honor and reputation than it could ever have gained by torture.
12.13.2007 5:05pm
Bart (mail):
anderson:

It would be interesting to hear from Suskind again after the current round of revelations. He is a good reporter and I enjoyed his book. However, someone is being gamed here.

This trial lawyer trusts witnesses who identify themselves and make themselves available for cross examination under oath. I heartily distrust anonymous sources with unknown agendas.
12.13.2007 5:10pm
J. F. Thomas (mail):
Nothing here provides an objective definition of "humane treatment" of any kind, nevertheless one that precludes my position that "humane treatment" means anything less than torture. Indeed, you can imply that humane treatment is anything not prohibited by this section of GC, which means anything less than murder, mutilation, torture, hostage taking and humiliation

Would you consider waterboarding "crueal treatment", because you forgot to include that one? My God man, give it up.
12.13.2007 5:12pm
Bart (mail):
Anderson:

We have had this discussion about the statutory definition of torture before. The reason we can keep going round and round is that we could both be subjectively right. The term "severe pain" has no objective definition because you cannot objectively measure pain. Consequently, if you think severe pain is a hangnail and I think it is an amputation, who is to say we are wrong.

Even though this argument can have a definite counting angels on a pinhead quality, you can make colorable arguments that an act falls outside the statutory definition of torture.

There is no real fundamental difference between the terms pain and suffering. Pain is the sensation. Suffering is the state of undergoing the sensation of pain. Consequently, if the act in question does not cause pain, it cannot cause suffering.

Waterboarding (placing celophane over your mouth and nose and pouring water over it) does not cause any appreciable physical pain or suffering.

Waterboarding does cause substantial panic, but the panic is very brief and is not prolonged mental pain or suffering.

Hell, there are at least two reporters I have seen who have allowed ex SF types to waterboard them on video and then taped their closing remarks without any evidence of prolonged mental pain or suffering. Waterboarding is something that you do not want to repeat, but it does not cause ongoing panic.
12.13.2007 5:23pm
Anderson (mail):
There is no real fundamental difference between the terms pain and suffering

IOW, the Congress used a superfluous word? It's possible to win that argument, but good luck.

I don't think Kiriakou's description of being waterboarded leaves any room for argument that he did indeed suffer. If you think that having severe panic inflicted on you isn't suffering, well, you're just not using words the way most people do.
12.13.2007 5:40pm
Bart (mail):
Anderson (mail):

If you think that having severe panic inflicted on you isn't suffering, well, you're just not using words the way most people do.

My friend, I can just as easily say that you have to be a wimp to think 35 seconds of panic for simulated drowning is "severe pain," but we will be talking past one another again.

I nearly drowned as a kid, choking on real water for much longer than 35 seconds before an adult pulled me out. While I would not care to repeat the experience, it was not remotely painful and I was not mentally traumatized.

I panicked more on a roller coaster. Consequently, from my subjective point of view, riding on a roller coaster is more torturous than waterboarding.

Maybe you think that riding a roller coaster is fun.

As I pointed out before, determining what constitutes "severe pain" is a subjective fool's errand. You simply cannot make an objective determination measuring pain without a point of comparison.

If you defined severe pain as that you experience from a substantial physical injury like breaking a bone or dislocating a shoulder, then a person might have a point of reference if they have personally suffered this kind of pain in the past. However, there is no point of reference in the statute, which makes it useless.
12.13.2007 6:06pm
Anderson (mail):
N.b. that you continue to use "pain" tendentiously (and narrowly), w/o addressing "suffering," and that your argument basically comes down to "I'm too tough to let waterboarding bother ME, so how bad can it be?"

I suppose Scalia might buy that one.
12.13.2007 6:10pm
Anderson (mail):
Meanwhile, here's another filibuster coming to a Senate near you:

WASHINGTON (AP) -- The House approved an intelligence bill Thursday that would prohibit the CIA from using waterboarding, mock executions and other harsh interrogation methods.

The 222-199 vote sent the measure to the Senate, which still must act before it can go to President Bush. The White House has threatened a veto.


There's no doubt that the Congress couldn't override a veto, but I suspect the Repubs will squash it in the Senate to avoid making Bush have to veto an anti-torture law. But, hey, "we don't torture."
12.13.2007 6:14pm
Bart (mail):
Anderson:

As I pointed out before, suffering is simply the state of experiencing pain. You cannot have suffering without pain. Do you contend otherwise?

BTW, as it has done on numerous other subjects, the Dem House enacted the bill limiting interrogation to the Army Interrogation Manual knowing that it would fail in the Senate so they could say that they tried to enact legislation that they really did not support in private.

Did Pelosi have any comments about her acquiescence to CIA coercive interrogation back in 2002?

Pure political theater.

It must be hell to be a Dem tasked with the responsibility of defending the country while having to deal with their base.
12.13.2007 6:24pm
Anderson (mail):
As I pointed out before, suffering is simply the state of experiencing pain. You cannot have suffering without pain. Do you contend otherwise?

"Suffer" is broader than simply "hurt." You're taking an unreasonably narrow definition of "pain." Being made to feel as though I'm drowning is "suffering" by any reasonable definition. If you have some legal authority to the contrary, I'd be happy to see it.

As for defending the Dems' invertebracy, you'll have to seek elsewhere.
12.13.2007 6:32pm
louisvillelawyer (mail):
I guess Peter Levin just didn't appreciate that simulated drowning really isn't torture AFTER IT HAPPENED TO HIM.

http://abcnews.go.com/WN/DOJ/story?id=3814076&page=1

Bart, you are really making me sick. Its one thing to argue that torture is ok in certain circumstances, but to argue that waterboarding isn't torture, when the military specifically trains their personnel on it in their training TO RESIST TORTURE??? If the police waterboarded you in order to induce a confession I'd like to hear you shrug it off so easily. You don't seem to appreciate the differece between you accidentally almost drowning as a child and intentionally being waterboarded -- imagine your aunt holding you under the water and surfacing every few minutes to scream at you to confess, maybe then you could appreciate it. How low can we go???
12.13.2007 8:22pm
Bob from Ohio (mail):
If waterboarding is already illegal, why is a bill needed to ban it?
12.13.2007 9:18pm
MarkField (mail):

If waterboarding is already illegal, why is a bill needed to ban it?


This is exactly why no such bill should be passed. Unless it's very carefully worded, it could lead to this very conclusion.
12.13.2007 9:47pm
Bart (mail):
louisvillelawyer (mail):

Bart, you are really making me sick. Its one thing to argue that torture is ok in certain circumstances, but to argue that waterboarding isn't torture, when the military specifically trains their personnel on it in their training TO RESIST TORTURE???

1) The US set the bar for defining torture very high and unenforceably vague. You may personally consider waterbaording generic torture, but it simply does not meet the statutory definition. If it did, why would the Dems be going through the motions of enacting new legislation to outlaw it?

2) There are many techniques being lumped together under the term waterboarding which are not used by the CIA.

An ex SEAL who trained baby SEALs in SERE school recounted how they would actually force water down the throat and into the lungs of their trainees, causing real rather than simulated drowning. This is by far the worst version and is the one setting off the kos kidz.

Reporters have had ex SF types perform another form of waterboarding on them where their mouth and nose is covered with a small towel and water was poured on the rage which would drip into the mouth and nose.

However, Kiriakou stated that CIA employed a third method where cellophane was placed over the mouth and nose of the prisoner and water was poured over it to simulate drowning without the introduction of water. In essence, the CIA uses a method on al Qaeda which is far less invasive than what we do to our own SEALs and SF in training.

Imagine your aunt holding you under the water and surfacing every few minutes to scream at you to confess, maybe then you could appreciate it.

There is no comparison. CIA subjected Zubaydah to waterboarding for 35 seconds and KSM for maybe a minute and a half.
12.13.2007 10:05pm
J. F. Thomas (mail):
If waterboarding is already illegal, why is a bill needed to ban it?

Because apparently far too many people are under the mistaken impression it isn't.
12.13.2007 10:22pm
Tom S (mail):
Bob from Ohio (who is demonstrating his ignorance):

Actually it is 1900: Back then, the US was waterboarding Filipino insurgents (until President Roosevelt ordered a stop to it). The British were also putting Boers in concentration camps. Apparently we have made less progress than you appear to believe.
12.13.2007 10:37pm
J. F. Thomas (mail):
The British were also putting Boers in concentration camps.

But at least the British were trying and executing soldiers for summarily executing illegal combatants. In Bart's world, such actions would be a-okay.
12.14.2007 9:33am
Bob from Ohio (mail):

Bob from Ohio (who is demonstrating his ignorance)


Maybe I was just baiting you and your fellow travelers?
12.14.2007 11:25am
Harry Eagar (mail):
Anderson sez: 'We didn't even try proper methods' and believes that torture doesn't work.

But Bill Taylor sez: 'I can also tell you that under torture anybody will eventually tell what the torturers want to know.'

That's from Taylor' memoir 'Rescued by Mao,' about his three and a half years as a prisoner of the Japanese. Not a military prisoner. He was a civilian.

The Japanese used the 'water cure' (NOT 'water boarding') on their prisoners. They didn't have to try it on very many before the rest (soldiers, Marines and civilians from several countries) decided to cooperate.
12.14.2007 11:31am
Leland (mail):

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


This comes from the 4th Geneva Convention on civilians. I'm not sure how a US Airmen is considered a civilian by anyone, but I do know there are some protocols that help define who the "above mentioned persons" are. It's a shame that someone grabbed some straw in an attempt to prove another wrong. Let's at least consider the Basic Rule for civilians:


Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
PART IV
CIVILIAN POPULATION
SECTION I.-GENERAL PROTECTION AGAINST EFFECTS OF HOSTILITIES

CHAPTER 1.-BASIC RULE AND FIELD OF APPLICATION
Article 48.-Basic rule
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.


Since KSM and Zubaydeh are combatants (though, JTF is confusing them as civilians probably because they didn't distinguish themselves from the civilian population while declaring Jihad) and targeting civilians; I don't see why anyone would think the 4th Geneva Convention would apply.
12.14.2007 11:39am
J. F. Thomas (mail):
Since KSM and Zubaydeh are combatants (though, JTF is confusing them as civilians probably because they didn't distinguish themselves from the civilian population while declaring Jihad) and targeting civilians; I don't see why anyone would think the 4th Geneva Convention would apply.

I don't know what you are talking about since I was referring to the 3rd, not 4th Conventions (I stay away from the 4th, because someone will point out that the U.S. has not ratified the 4th--although it has agreed to be bound by the principles contained therein).

The "above persons" referred to in the 3rd is anyone not taking a part in active hostilities, and that definition those in the custody of the combatants (detainees, POWs, arrestees, etc.). You can't participate in hostilities if you are sitting in a jail cell and behind barbed wire under guard.

That was the decision of the SC just a few months ago so I am not just talking out my ass (unlike Bart).
12.14.2007 11:59am
Anderson (mail):
But Bill Taylor sez: 'I can also tell you that under torture anybody will eventually tell what the torturers want to know.'

Anecdote is not the singular of data.

Prof. Rejali, who actually studies this stuff for a living:

Myth no. 2 Everyone talks sooner or later under torture.

Actually, it's surprisingly hard to get anything under torture, true or false. For example, between 1500 and 1750, French prosecutors tried to torture confessions out of 785 individuals. Torture was legal back then, and the records document such practices as the bone-crushing use of splints, pumping stomachs with water until they swelled and pouring boiling oil on the feet. But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse (an exceptional high). Most of the time, the torturers were unable to get any statement whatsoever.

And such examples could be multiplied. The Japanese fascists, no strangers to torture, said it best in their field manual, which was found in Burma during World War II: They described torture as the clumsiest possible method for gathering intelligence. Like most sensible torturers, they preferred using torture for intimidation, not information.


Try clicking links like the one above sometime, folks; you might learn something. I certainly have, since I took an interest in my country's torture fetish.

Leland - there is nothing in Geneva that I recall that says "if party A doesn't follow the GC, then no one has to respect the GC w/ regard to party A."

The question about KSM et al. as "combatants" is quite simple. Does KSM meet the description of an unlawful combatant in the GC?
12.14.2007 12:01pm
David Drake:
J.F. Thomas--to amplify Leland's point, the entire context of the snippet of the GC you site is as follows:


Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(emphasis supplied)


It is patent that the persons who take an active part in hostilities are not protected under the provision you rely on.
12.14.2007 12:28pm
David Drake:
J.F. Thomas--

I posted the foregoing before reading your last comment.

Your attempted distinction makes no sense to me--are you saying that no person who has been detained, no matter how active a part that person took in hostilities, can be tortured, executed, etc.? Your reading makes no sense: how can a person taking active part in hostilities who has not yet been detained be tortured or subjected to degrading treatment? By having Beastie Boys piped over the battlefield like The Ride of the Valkyries was in Apocalypse now?

Can you quote me the relevant portion of the Supreme Court ruling you cite?
12.14.2007 12:41pm
J. F. Thomas (mail):
It is patent that the persons who take an active part in hostilities are not protected under the provision you rely on.

Read it again "Persons taking active part in hostilities". 'Taking' is in the present tense. To emphasize the point it then goes on to list "including members of the armed forces who have laid down their arms". It includes people who were taking part in the hostilities but aren't any longer because they have laid down their arms, been wounded or captured.
12.14.2007 12:44pm
J. F. Thomas (mail):
David,

Yes, the GC say that you can't torture anyone--big surprise. You also can't execute anyone "without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Another shocking revelation!

And of course you can treat people cruelly or even kill them if they are taking active part in hostilities. I don't consider shooting or trying to blow someone up very nice, do you?
12.14.2007 12:52pm
ejo:
you will never get a response that makes any logical sense from JF. he still can't answer why those not following the rules qualify for enhanced criminal justice system due process rights while those who do don't qualify. he won't explain why it would make sense to provide incentives for those not following the rules to not follow the rules.
12.14.2007 12:56pm
J. F. Thomas (mail):
you will never get a response that makes any logical sense from JF. he still can't answer why those not following the rules qualify for enhanced criminal justice system due process rights while those who do don't qualify.

ejo of course simply lies about what I have said (since the facts and the plain language of the GC are on my side).

I have addressed his ridiculous question numerous times and he just refuses to ignore the answer. I will do it once again, maybe it will finally sink in.

Being a legal combatant means that you can not be held legally responsible for doing the things prior to your capture that soldiers are supposed to do (like shoot at and kill the enemy). It also grants you extraordinary rights like the right to be treated as befits your rank and shop at the commissary, receive and send mail, and associate freely with your fellow POWs.
12.14.2007 1:04pm
ejo:
nope, still no answer-you haven't addressed the question again. a criminal defendant gets more rights than that-they get mail, they have a right to bail and pre-trial release, they certainly get more due process rights in terms of keeping them under lock and key (ie. miranda,4th Amendment, speedy trial, discovery, etc). you also don't address why we want to offer incentives for conduct we surely want to eliminate. that's why the term silly is so appropriate.
12.14.2007 2:57pm
Leland (mail):
JTF wrote:

I don't know what you are talking about since I was referring to the 3rd, not 4th Conventions


I'm sorry, the only place I could find your statement isolated in the way you quoted was in the 4th Convention. It is also in the 3rd Convention after the words that David Drake provided. The key part is that there is a definition for the "persons" that you are ignoring in order to make your claims.

Anderson wrote:

Leland - there is nothing in Geneva that I recall that says "if party A doesn't follow the GC, then no one has to respect the GC w/ regard to party A."


That's not my argument. My point is there is a classification of participants in a war zone, and those classifications are spelled out in many places. Those classifications determine treatment.

BTW, the Protocols would support JTF and Anderson's arguments, but they have not been ratified by the US.
12.14.2007 2:57pm
J. F. Thomas (mail):
It is also in the 3rd Convention after the words that David Drake provided. The key part is that there is a definition for the "persons" that you are ignoring in order to make your claims.

I am not ignoring anything. You are ignoring the plain meaning of the GC.

a criminal defendant gets more rights than that-they get mail, they have a right to bail and pre-trial release, they certainly get more due process rights in terms of keeping them under lock and key (ie. miranda,4th Amendment, speedy trial, discovery, etc). you also don't address why we want to offer incentives for conduct we surely want to eliminate. that's why the term silly is so appropriate.

What crime has a POW committed? We are theoretically holding illegal combatants because they have committed crimes against the U.S.--even if it only involved shooting at U.S. soldiers on the battlefield in Afghanistan. Once they are declared illegal combatants we can try them for the crime of attempted murder or murder and sentence them to life in prison or even death for it. They can be confined in a regular prison cell and be forced to wear prison garb and eat prison food.

A POW must receive the same rations (adjusted for cultural considerations) and housing as a soldier of similar rank in the detaining power. He can not be isolated from other prisoners and the detaining power must not limit his access to books, musical instruments, educational opportunities, sports equipment. He must be allowed to retain his own clothes and wear his own uniform and if he chooses to cook his own food the detaining power must provide the POWs with kitchen facilities. As soon as hostilities cease he must be repatriated as quickly as feasible.

I could go on and on, but you really should read it for yourself. I provided a link above.
12.14.2007 3:16pm
David Drake:
JFT--

You said


The "above persons" referred to in the 3rd is anyone not taking a part in active hostilities, and that definition those in the custody of the combatants (detainees, POWs, arrestees, etc.). You can't participate in hostilities if you are sitting in a jail cell and behind barbed wire under guard.

That was the decision of the SC just a few months ago . . .


Is your position really that as soon as a hostile enemy combatant (NOT someone who would qualify as a POW) is captured he gains the rights of a person not taking part in hostilities? If so, please cite me the Supreme Court case you claim to have held this.

What gives me the biggest problem with your position is that a rational military commander, faced with a GC interpreted the way you think it should be, will probably kill all hostile enemy combatants because (a) it's cheaper and safer, given our overwhelming battlefield superiority, than attempting to capture them;(b) they are nearly valueless as sources of information because they will have to be treated with kid gloves; and (c) they have the potential of tying up the already overextended federal court system with endless litigation.

And death seems to me a whole lot worse than waterboarding, regardless of whether you think waterboarding is "torture" or not.
12.14.2007 4:44pm
David Drake:
JFT--


What crime has a POW committed? We are theoretically holding illegal combatants because they have committed crimes against the U.S.--even if it only involved shooting at U.S. soldiers on the battlefield in Afghanistan. Once they are declared illegal combatants we can try them for the crime of attempted murder or murder and sentence them to life in prison or even death for it. They can be confined in a regular prison cell and be forced to wear prison garb and eat prison food.


This is really the heart of the controversy in this area. You believe that these people are simply criminals and should be dealt with under the criminal justice system; I believe that these people are much worse than criminals--they are waging war without following the rules of war, and therefore we can kill them and do anythinig else to them short of killing them so that they, others like them, and others who might be persuaded to join them will stop waging war against us and the civilized world.

I will grant you that the root of the problem here is that, without a uniform or the functional equivalent of a uniform, it is difficult to tell whether someone you've captured--even on the battlefield--is a combatant or not. But that difficulty does not warrant granting everyone captured out of uniform a status under the rules of war equivalent to that of a POW but with rights exceeding those of a POW, when at least some of them refuse to follow the rules of war because, under those rules, they will almost certainly lose, and lose quickly.
12.14.2007 4:58pm
Harry Eagar (mail):
Why do you draw the line at killing them?

They won't be drawing that line if they get you in their hands.

Time to get serious. This isn't an assignment in law class. It has nothing much to do with law anyhow.
12.15.2007 12:21am
Andrew J. Lazarus (mail):
Just for the record, John McCain talks about how valuable the GC and the IRC were for reducing the brutality of North Vietnamese captivity.

People like Bob-Ohio, who likes to ignore treaties when convenient and feeling powerful, and Harry Eager-to-torture seem to feel our enemies are the lucky ones, getting to let their ids run free. "It has nothing much to do with law anyhow." Yeah, that explains the torture.

Guys: the USSR is no more. The Nazis lost. The track record for brutality is more losses than wins. Whatever makes it attractive has more to do with personal fear than national security.
12.15.2007 9:21pm