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Ouch:
The Wall Street Journal, commenting on Yale Law School's lawsuit on behalf of convicted terrorist Jose Padilla against Yale Law School graduate John Yoo: "Perhaps if Mr. Yoo had decided to pursue a life of terrorism, he too could be represented by his alma mater."
Anderson (mail):
Ouch? Whatever. Counseling others on how to violate the Torture Act sounds like state-sponsored legal terrorism to me. A crack squad of theologians would tie itself in knots as to who's more evil, Padilla or Yoo.
1.10.2008 2:01pm
Ralph Phelan (mail):
Assuming this is true: "A crack squad of theologians would tie itself in knots as to who's more evil, Padilla or Yoo."

Why is it that Yale is on Padilla's side?
1.10.2008 2:04pm
Anderson (mail):
Given that the relief sought would be of little or no benefit to Padilla, I think "on Padilla's side" is a bit of an exaggeration.
1.10.2008 2:09pm
OrinKerr:
Anderson,

Do you really think there's a good case that John Yoo is more evil than Jose Padilla? If I recall correctly, Padilla is believed to have entered the United States to set off a "dirty nuke" bomb in a United States city. (I realize that criminal charges against him didn't allege that, but that of course doesn't mean he didn't do it.)
1.10.2008 2:10pm
AF:
The quoted comment is only about Yale clinic's choice of client, independent of the merits of the suit. So I'm curious: is it wrong for the Yale clinic to represent Padilla, or not to represent Yoo?
1.10.2008 2:18pm
Thoughtful (mail):
Orin,

I take it your question is "Does Anderson really think that IF EVERYTHING THE GOVERNMENT ALLEGES ABOUT PADILLA IS CORRECT that there's a good case that John Yoo is more evil than Jose Padilla?"

Would the fact that Yoo seems very helpful to the government in allowing that institution to ignore the significance of the capitalized portion of the above quote play any role in your assessment of relative evil?
1.10.2008 2:21pm
Scote (mail):

Ralph Phelan (mail):
Assuming this is true: "A crack squad of theologians would tie itself in knots as to who's more evil, Padilla or Yoo."

Why is it that Yale is on Padilla's side?


Er, you mean on the side of civil rights and the enforcement of the constitution? Yeah, why would Yale be for that when, instead, it could be pro torture?

Padilla may not be a sympathetic defendant but the rights his case touches on (you know, the right not to be subjected to illegal torture?) must be defended and Yoo sought to find ways to dodge the constituion. He needs to be held accountable to the degree he was responsible for engaging in an illegal conspiracy to subvert the constitution.
1.10.2008 2:28pm
Scote (mail):

A crack squad of theologians would tie itself in knots as to who's more evil, Padilla or Yoo


Yoo's actions certainly had more effect.
1.10.2008 2:30pm
EH (mail):
It's certainly possible that if Padilla had succeeded in everything alleged against him, he still would not have affected as many people as Yoo's work. Furthermore, it appears that Mr. Yoo is somewhat affiliated with the Bush Administration's decision not to join the International Criminal Court.
1.10.2008 2:31pm
Thales (mail) (www):
Nobody thinks Padilla is a good person. But he may be a much more minor or wanna-be figure than previously alleged/suspected, and the government's failure to cough up any actual evidence of the dirty bomb plot goes a long way to support that conclusion. Also, the tactics of holding him without charge in a jurisdiction-shopping naval brig, then switching to completely unrelated charges at the last moment are enough to make one wonder just how much credence we should give the repeated accusations of utter evility. Such tactics certainly drove one of the most conservative and executive branch-deferring judges in the country, Michael Luttig, to the point of public exasperation.
1.10.2008 2:33pm
MDJD2B (mail):

A crack squad of theologians would tie itself in knots as to who's more evil, Padilla or Yoo

Yoo's actions certainly had more effect.

Yes— they protected the couuntry against the likes of Padilla.
1.10.2008 2:33pm
Hank:
If I recall correctly, Padilla is believed to have entered the United States to set off a "dirty nuke" bomb in a United States city. (I realize that criminal charges against him didn't allege that, but that of course doesn't mean he didn't do it.)


There's no evidence that pigs can fly, but that of course doesn't mean that they can't. Is there any evidence that Padilla entered the United States to set off a dirty bomb? You say he "is believed" to, and the passive voice enables you not to name anyone who does. Even Ashcroft and the other Bush spokesmen who asserted it at the time may not have believed it.
1.10.2008 2:33pm
Thomas_Holsinger:
Mention of John Yoo is an exceptionally effective way to distract lefties from any other subject. His name is a magic word which results in them howling ritual denunciations, painting themselves blue, dancing under the moon, etc. It's their purification ritual.
1.10.2008 2:34pm
bittern (mail):
Y'all can do the Yoo-Padilla cage match thing. My complaint would be that the WSJ comment is uncreative and deserves no "ouch." How about a consumerist touch asking whether Yoo paid enough tuition to buy all Yalie affections? Not clever enough yet? Ouch!
1.10.2008 2:37pm
Noops (mail):
"Yes— they protected the couuntry against the likes of Padilla"

Ah yes, the tired old, protect the country, your a traitor, you don't support the country...SUPPORT OUR TROOPS! mantra.

He didn't protect the country. If anything, he damaged it. The oath that officials and military take doesn't say "protect the country" it says "protect and defend the constitution." The people who implemented that were pretty smart. Rights, are in fact, expensive, sometimes in terms of lives. Abridging the foundation of our rights is pretty much the opposite of protecting the country. I think the people who constantly spew the "terrorist!!!!" mantra are the real cowards. They would, in fact give up liberty for security.
1.10.2008 2:41pm
Yale Grad:
What exactly did Yoo argue that was so controversial? Did he make the argument the President's power over foreign affairs means that he can do whatever he wants to Padilla, including any form of torture, regardless of what Congress says? Or did he only argue that techniques like waterboarding should not be deemed to be torture under the Torture Act? If the former, I can see why this is controversial (though the lawsuit against Yoo still would be ridiculous) but if he only argued the later, this doesn't seem that much outside the mainstream at all.
1.10.2008 2:51pm
fennel:
Who is more evil is beside the point. No lawyer I know represents suspected terrorists out of an affinity for the cause of Al Qaida. Rather, these lawyers see themselves as checking a government that has shown utter contempt for the Constitution and the laws of this nation.

In this case, the two men are just vehicles: John Yoo is the enabler and cheerleader for torture and unending executive power; Jose Padilla is the convenient victim. If the roles were switched, I'm sure Yale would be happy to represent Yoo.
1.10.2008 2:51pm
PLR:
Y'all can do the Yoo-Padilla cage match thing. My complaint would be that the WSJ comment is uncreative and deserves no "ouch."

That's kind of what I was thinking, given how well educated the average WSJ subscriber is (as distinct from the online moochers). The comment is stupid on its face.
1.10.2008 2:53pm
GetReal (mail):

John Yoo is the enabler and cheerleader for torture and unending executive power; Jose Padilla is the convenient victim.

This comment is the most naive I've seen in a while.
1.10.2008 3:00pm
A. Zarkov (mail):
I don't understand how Yale or Padilla has any standing to sue Yoo for anything. Yoo was not Padilla's attorney. Yoo in his capacity as a government employee was asked to render an opinion on a legal matter and he did. That was his job. He might have done a poor job as a lawyer, but that does not mean he Yoo injured Padilla. Did Yoo tell anyone to torture Padilla? Did Yoo torture Padilla? If Yoo checked out a government car and ran someone over, then it's the government's duty to compensate the victim, not Yoo. Then there is the matter of sovereign immunity.

In most other contexts, this suit would invite derision. Suppose my tax attorney give me an incorrect opinion. I can sue him for his error, but someone else like the government or Yale has no standing to sue my attorney. This case is ridiculous. It invites people to hate lawyers and the legal system.
1.10.2008 3:03pm
ejo:
nope, nothing anyone has done has had the effect of protecting the country. it has just been random chance we haven't been attacked since then. I am sure our enemy hasn't given a thought to killing americans via terrorist attacks. maybe the Mossad has given up their dreams of inciting a nuclear war after bring down the Towers? as to siding with the enemy, if, as a group, you tend to provide representation to them to the exclusion of other worthy causes, I have to suspect you find something appealing about them. Certainly Lynne Stewart did-she loved those savages and hated this country. Why should I think the Dean at Yale and the enabler who filed this suit are any different?
1.10.2008 3:08pm
Anderson (mail):
Did he make the argument the President's power over foreign affairs means that he can do whatever he wants to Padilla, including any form of torture, regardless of what Congress says?

Yes.
1.10.2008 3:08pm
Richard Aubrey (mail):
Fennel

See Lynne Stewart.
1.10.2008 3:09pm
c.gray (mail):

Abridging the foundation of our rights is pretty much the opposite of protecting the country.


Tell that to the ghost of FDR, who managed to get all the nation's conscientious objectors detained without trial ... a full year BEFORE Pearl Harbor. Usually the POTUS has a rather different opinion on the relative merits of national defense.

Historically, war always results in at least a temporary contraction of civil liberties. And given that September 11, 2001 saw as much death and destruction as December 7, 1941, responding as though a war was in progress, during the immediate aftermath of the attack, was hardly an unreasonable response.

Its a bit rich, years after the fact, to claim that a government lawyer epitomizes some kind of satanic evil because a legal memo he wrote might have, in some wildly conjectural sense, resulted in Padilla being incarcerated for a few years in a navy brig that smelled odd instead of the general population of a federal prison. Especially when the guy's fate in the end is to serve out the next several decades locked up anyway. It may "shock the conscience" of a few law students at Yale and a few pinhead bloggers, but most people aren't likely to get nearly as vaporous over it.

The plaintiff's "case" is so weak, and has so many obstacles to its prosecution, that it's just another advertisement for a "loser pays" rule in litigation.
1.10.2008 3:22pm
ejo:
exactly-these lawyers at Yale are of a mindset with that disgrace to the profession. somehow, we are supposed to believe they are driven by their wonderful concern for human rights as opposed to their hatred for the United States. why are we required to make the leap of faith and believe it is the former and not the latter. if, between 1942 and 1944, you devoted your life to the representation of Nazis, I would think you found something worthy about them. lawyers found it easy to back Joseph Stalin, with some of the modern "human rights" groups being founded by staunch backers of the regime. why is the present any different and why should these folks get the benefit of the doubt?
1.10.2008 3:23pm
Houston Lawyer:
I think Yale's choice of client shows something. It's not like they are out there defending the rights of Americans to own firearms or hire whomever they please regardless of race. They only appear to object to some assertions of government power.
1.10.2008 3:24pm
rarango (mail):
Zarkov's point above seems to make absolulte common sense to me. I would think ultimately some type of sovereign immunity should apply.

And even if Yoo made the arguments Anderson says he did, he did not approve them. He drafted them, and while some might like to blame Yoo, Ashcroft and Bush were the deciders.
1.10.2008 3:25pm
Mark Field (mail):

Do you really think there's a good case that John Yoo is more evil than Jose Padilla?


I'm not Anderson, but I do think Yoo is more evil. In general, government can do FAR more harm than any individual. Yoo's claims of expansive executive power harm this country far more, especially in the long run, than anything Padilla was likely to do.* If nothing else, Padilla accomplished essentially nothing despite his bad intentions. Yoo provided the legal "cover" for, it appears, hundreds of cases of torture and abuse. It's no contest -- Yoo is a despicable human being.

And one of these days I'll work up the energy to tell you how I really feel.

*While I'm pretty skeptical of the "dirty bomb" claim in light of subsequent events, I'll treat it as included in the list of Padilla's bad intentions.
1.10.2008 3:29pm
Anderson (mail):
Rarango, it's a bit of a catch-22, isn't it? Yoo gets to say "hey, I just made recommendations, I didn't make the decisions," while Bush and Ashcroft get to say "hey, we just relied on legal advice, we trusted Yoo to research this stuff."

So no one's responsible, and happily we can't watch the DVD's of what resulted from Yoo's advice, b/c the CIA thoughtfully protected our easily wounded sensibilities in that regard.

There is a colorable case to be made -- and I would be curious whether Prof. Kerr disagrees as to colorability, whether or not he agrees on the merits, or thinks immunity moots the question -- that Yoo's advice was given in bad faith, for the purpose of evading, not distinguishing, the laws against torture and the limits on executive authority. I think it's perfectly arguable that such advice should not be protected and that deliberate malfeasance as an OLC attorney should be punishable.

Now, whether Padilla has standing, I don't know. This doesn't seem to me the best way to make the case against Yoo, but then, I suspect the Yale lawyers have thought about that issue a great deal more than I ever will.
1.10.2008 3:32pm
Federal Dog:
"If nothing else, Padilla accomplished essentially nothing despite his bad intentions."


Because he was unsuccessful, he was not evil?
1.10.2008 3:39pm
Somebody:
Repeat after me: The Constitution is not a death pact.
1.10.2008 3:39pm
Howard Gilbert (mail):
Jose Padilla is a US citizen who travelled to Afghanistan and on July 24,2000 he enlisted in an army that was at war with the US. Although the US Congress did not recognize it, the enemy had declared war twice and attacked a US warship, so a state of war existed under international law if not US domestic law. Padilla went through a month of basic training and then served six months of standard infantry duty as one of an estimated 18,000 soldiers in an al Qaeda supported corps of the Afghan army. He was then recruited for a special operations unit planning "the apartments operation," a follow on to the "planes operation" on 9/11. Padilla was to lead his unit into the US and blow up apartment buildings in a city of his choice on a night of his choosing, using natural gas as the explosive. In mid March, 2002 his unit was transferred to the command of KSM and the support cadre that previously managed the 19 hijackers in the "planes operation". He was captured as an enemy soldier attempting to enter the US while on a military mission assigned to him by his commanding officer. He was even travelling on a ticket he purchased using enemy military funds given to him for the purpose of his mission. He was captured by Federal agents who had his military personnel file captured in Afghanistan. Under questioning, he admitted everything and provided all the details listed above.

Padilla is not very smart, so when he has an idea he talks about it over and over again. In Afghanistan his big idea was to steal something radioactive to add to any bomb you made, so the press would call it a dirty bomb and the American people would be scared. When the US transferred him to military custody they could not talk about the truckload of military personnel records (because that was still a secret) and they could not tell anyone anything that Padilla had told them (because the fact that he was talking was also a secret). So they released the story that he was always shooting off his mouth about making a dirty bomb because that is something they could have learned from anyone who knew him in Afghanistan. Inside al Qaeda he was known to everyone as "the American" and "the Dirty Bomber," but his actual mission was to blow up apartment buildings using natural gas.

Padilla is a traitor and would be mass murderer, but legally he was just a soldier following orders. It is true that his mission would have been a war crime, but in international law it is not a war crime to plan a war crime, or train for a war crime, or even attempt a war crime. You actually have to commit a war crime, and Padilla was captured when he got off the plane. He was never charged criminally for anything he did after enlisting. His Miami conviction was for things he did before July 24,2000 while he was a civilian.

It is dangerous to try and attribute civilian moral norms to military matters. We then get into the question of whether anything al Qaeda did was worse than Dresden, Tokyo, or Hiroshima. Padilla was held in military custody simply because he was an enemy soldier. Not because he was a loud mouth, or a bad person, or a would be killer. Certainly not because anyone ever claimed he was a criminal. He was an enemy soldier captured on a military mission. He was not given any of the process normally associated with domestic criminal prosecution because there was no claim of criminal conduct or criminal charges for anything he did as a soldier, and all those constitutional rights apply specifically to criminal proceedings.

Yale, or anyone else, should certainly be able to represent Padilla in court, but not with a really stupid complaint. Under international law, Padilla has no claim to rights under any Geneva Convention (because he was captured under circumstances that make him a spy) except maybe Common Article 3. Under US law he should have been treated according to the Army Regulations for handling prisoners of war. That is about the limit of his rights. When he was transferred to Miami and charged with prior civilian criminal offenses, he had the entire set of constitutional rights that every American enjoys when charged with a crime, but while he was being held as a captured enemy soldier those rights did not apply. I can go down to the local court house and demand my right to a speedy trial by a jury of my peers, to representation by a lawyer, to call witnesses and confront my accusers. Someone will point out to me that while I have all those rights, they only apply when I am accused of a crime. I don't have the right to a speedy trial until after I am charged with something. Padilla had rights, but they didn't apply to his detention as a prisoner of war.

Padilla may have been a bad man. Yoo may have been a bad man. Yale, however, appears to have to bad lawyers, and that is much more to the point.
1.10.2008 3:42pm
Anderson (mail):
It's not a torture pact either, my indefinite-pronoun friend.
1.10.2008 3:42pm
Anderson (mail):
Howard, do you have any case law on the legal status of an American citizen who joins an enemy army?

Armchair-wise, I can see good arguments for both your position or for insisting that he's to be tried as a U.S. citizen for treason, but not for both positions.
1.10.2008 3:48pm
SeaDrive:
"The Constitution is not a death pact."

I suppose that was the Delcaration of Independence which caused Ben Franklin to say "We must all hang together or, most assuredly, we will all hang separately."
1.10.2008 3:50pm
A. Zarkov (mail):
Anderson:

Who do you think is a greater danger to you personally? Yoo or Padilla? Do you think our democracy is so fragile, that a government lawyer can subvert it? I can understand you being angry and suspicious of Bush as he makes policy.

On the matter of US torturing soldiers, civilians, and ignoring the Geneva Convention. Nothing new as we've done it before. As documented here, here and here. The US and its WWII allies did all that and more, including sending of innocents to the USSR as slave labor. Next time you hear that "torture is un-American," or that's not what the country represents, read a little history. So how come no condemnations of FDR and Truman? How come no lawsuits against all the functionaries in the Roosevelt Administration? After all they did it to millions of innocents instead of one guilty terrorist.
1.10.2008 3:52pm
ejo:
why are we talking about Padilla when the conversation should be about his enablers and fellow travelers? can someone explain why we have to attribute good motives to the Dean, his sidekick, and any of the other mouthpieces for terror?
1.10.2008 3:55pm
Thorley Winston (mail) (www):

Repeat after me: The Constitution is not a death pact.


Nor does it prohibit anything that John Yoo actually wrote in his memos.
1.10.2008 3:56pm
rarango (mail):
Anderson: its not a catch 22 at all as far as I can see. Yoo's job was to make legal recommendations; Yoo's political bosses can accept or reject that advice at which time it becomes their policies. The political bosses are accountable through congressional oversight, elections, and impeachment. While they (Bush and Ashcroft) may claim they just followed legal advice, thats a hollow claim as we all know. The buck stopped with them; the fact that the electorate and the congress apparently feel not compelled to the hold them accountable thru the processes I mentioned does not in the least create a catch 22.
1.10.2008 3:57pm
Ken Arromdee:
Padilla is a traitor and would be mass murderer, but legally he was just a soldier following orders.

Padilla wasn't a soldier following orders, because Al Qaeda isn't a government. It's like saying that a Mafia hitman is merely a soldier because the Mafia tells him who to kill.
1.10.2008 3:58pm
Hoosier:
EH--Helping to keep the US out of the International Criminal Court is on the level of support of torture?!!! Then put me in the camp of the "evil-doers," since I've written some letters to Sens. Lugar and Bayh on the issue. And I am on Yoo's side in this case.

Anderson-->>Rarango, it's a bit of a catch-22, isn't it? Yoo gets to say "hey, I just made recommendations, I didn't make the decisions," <<

OK. You guys are having fun at the expencse of us non-lawyers, right? I mean, isn't that what advocates DO? Even if they don't like the client's position? Or the client? Isn't this why we tell lawyer jokes when you aren't around?

As long as Yoo was convinced (HE was; Not you.)that what he was advocating was in line with what is constitutionally allowed, what makes him different?
1.10.2008 3:58pm
Hoosier:
A. Zarkov" >>After all they did it to millions of innocents instead of one guilty terrorist.<<

"Millions"?
1.10.2008 4:01pm
rarango (mail):
what is a "colorable case?" Must be a "term of art."
1.10.2008 4:02pm
ejo:
the Yalies are not representing military members charged with crimes. you would think this would enable them to poke an eye in the big evil government, wouldn't you? are they unworthy of representation by these worthies? what makes them so unworthy while they swoon over the likes of Padilla?
1.10.2008 4:02pm
eyesay:
c.gray writes "given that September 11, 2001 saw as much death and destruction as December 7, 1941, responding as though a war was in progress, during the immediate aftermath of the attack, was hardly an unreasonable response."

Get this straight: on September 11, 2001, nineteen persons hijacked four U.S. passenger jets, and we know what happened next. Of those nineteen persons, fifteen were citizens of Saudi Arabia, zero were citizens of Iraq. Not only that, Iraq had no Al Qaeda presence. Even the U.S. State Department has declared this. In short, Iraq had no connection to the events of September 11, 2001.

By invading Iraq, the Bush administration abandoned the effort to stabilize Afghanistan, resulting in a situation there hardly better than before we started.

What if, contrary to fact, several of the hijackers had been Iraqi citizens? Well, if nineteen Americans hijacked four Mexican airliners and flew them into major Mexican office towers and the Mexican defense ministry, would this give Mexico justification to use "shock and awe" and bomb Washington? Definitely not — unless (perhaps if) it could be shown that the U.S. government has sponsored the attack. So, even if (counterfactually) some of the hijackers had been Iraqis, we also don't have the slightest scintilla of association between the events of September 11, 2001, and Saddam Hussein or any part of the Iraqi government, business, industry, or its citizens or territory. Nothing.

Responding as though a war with Iraq was in progress, during the immediate aftermath of the attack, was an extraordinarily and egregiously unreasonable response.
1.10.2008 4:02pm
Cornellian (mail):
On the matter of US torturing soldiers, civilians, and ignoring the Geneva Convention. Nothing new as we've done it before.

Note the inevitable slide from "we don't do it" to "we do it but it's no big deal." Next step will be "yeah we torture people but that's a good thing."
1.10.2008 4:04pm
Hoosier:
Sure, we torture people. But that's a good thing.
1.10.2008 4:05pm
Thorley Winston (mail) (www):
Who do you think is a greater danger to you personally? Yoo or Padilla?


Unfortunately Elio Evangelista could not be reached for comment
1.10.2008 4:05pm
Oren:
Repeat after me: The Constitution is not a death pact.
Repeat after me: The provisions in the Constitution are not optional.

nope, nothing anyone has done has had the effect of protecting the country. it has just been random chance we haven't been attacked since then.
Also, the rock prevents tiger attacks. See, while I've had this rock, no tigers have attacked me. If you want to assert that X prevents Y, you have to show at least some case where Y was actually going to happen and that X impacted it. The best we've done is a failed prosecution in Miami and prevented a 'liquid explosive' plot that any organic chemist could have debunked.

Also, with regards to the "evil" questions, can't they both be evil? I mean, you guys would probably sit around in 1941 debating who was more evil, Hitler or Stalin, all the while ignoring the obvious fact that evil people quite often oppose each other violently. Padilla is scum that tried to attack the United States, Yoo is scum that attacked the bedrock principles of the United States. I hope they both end up in the same ring of hell so they can enjoy each other's company for eternity - they deserve each other.
1.10.2008 4:07pm
ejo:
don't forget Roosevelt in your evil mix-after all, he interned people. with that, you would have to equate him with Stalin and Hitler, right. you do a good job of recognizing the speck in the eyes of some(ours) while ignoring the very real evil of others (our enemies). why is that?
1.10.2008 4:12pm
Tony Tutins (mail):
The plaintiffs whose cases define our rights are seldom sympathetic. Ernesto Miranda kidnapped, raped, and robbed young women. Yet I would not give up my right to have a lawyer present during questioning just because Miranda was a real bad guy.

Jose Padilla was a native-born U.S. citizen and thus should have been tried in a U.S. court. Asserting that he was a member of a foreign army and then using that assertion to hold him indefinitely in a military prison begs the question -- I don't see how you can bootstrap your way into that. If I accused you of perjury I would not be allowed to suppress your testimony on the ground that "he's a liar, don't listen to him."
1.10.2008 4:13pm
ejo:
the right to conduct terrorist operations against the US as enshrined in the Constitution-what amendment is that?
1.10.2008 4:21pm
Anderson (mail):
As long as Yoo was convinced (HE was; Not you.)that what he was advocating was in line with what is constitutionally allowed, what makes him different?

The argument I'm making is that either Yoo was not actually so convinced, or that such a belief was sufficiently preposterous that his subjective intentions are irrelevant.

For instance, take this gem: "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." IOW, Bush was not bound by the Torture Act, and could torture anyone he declared an "enemy combatant" with impunity.

Besides being woefully unsupported by any case law, this proposition also ignores the actual language of the Constitution, which grants the Congress power to "make Rules concerning Captures on Land and Water" and to "make Rules for the Government and Regulation of the land and naval Forces." Not the commander-in-chief, but the Congress, has the authority. You would not know this from reading the memo Yoo wrote for Bybee.
1.10.2008 4:21pm
jukeboxgrad (mail):
ejo: "nope, nothing anyone has done has had the effect of protecting the country. it has just been random chance we haven't been attacked since then."

The WTC was first hit about a month after Clinton took office. We then went through the rest of Clinton's term (almost 8 years) without suffering another domestic attack (unless you want to claim that Timothy McVeigh is part of the vast Islamofascist conspiracy). Somehow, Clinton managed to achieve this amazing feat without (as far as I know) instructing the CIA to waterboard people.

So your implied argument, that a torturing president keeps us safe, is as about as logical as claiming that a saxophone-playing president keeps us safe.
1.10.2008 4:28pm
jukeboxgrad (mail):
gray: "Historically, war always results in at least a temporary contraction of civil liberties."

Historically, war always results in at least temporary extra sacrifice for almost all Americans. Since you're making the WWII comparison, this would include things like war taxes, rationing, widespread enlistment, full industrial mobilization etc.

If you want to make the WWII comparison, I think you need to deal with the incongruity I just described.

"responding as though a war was in progress, during the immediate aftermath of the attack, was hardly an unreasonable response."

I have just pointed out that we didn't respond "as though a war was in progress."
1.10.2008 4:28pm
jukeboxgrad (mail):
houston: "They only appear to object to some assertions of government power."

Maybe you forgot that this country was founded on the idea of preventing excessive "assertions of government power." I can also vaguely recollect a time when conservatives were concerned about excessive "assertions of government power."
1.10.2008 4:29pm
jukeboxgrad (mail):
somebody: "Repeat after me: The Constitution is not a death pact."

Repeat after me: the Constitution obviously doesn't mean much to you if you're willing to shred it over some wackos in a cave.
1.10.2008 4:29pm
jukeboxgrad (mail):
ejo: "you do a good job of recognizing the speck in the eyes of some(ours) while ignoring the very real evil of others (our enemies). why is that?"

Because while I condemn all criminals, I have a special duty to act when I notice criminals on my own payroll.
1.10.2008 4:29pm
A. Zarkov (mail):
"… which grants the Congress power to "make Rules concerning Captures on Land and Water" and to "make Rules for the Government and Regulation of the land and naval Forces."

Does the Constitution grant Congress the sole power to make these rules? I'm not saying it does or doesn't, only that the situation is not quite so clear cut as you suggest. You make a very strong assertion: Yoo's legal analysis is so flawed that no reasonable lawyer could ever come to his conclusions, thus his actions go beyond mere incompetence.
1.10.2008 4:32pm
Anderson (mail):
I don't quite get the FDR-baiting, btw. What he did to the Japanese-Americans was wrong, but it was litigated up to the Supreme Court, which held, incorrectly, that it was legal.

I would have thought the lesson of that history was to be more skeptical of "presidential wartime power" claims, not more credulous of them.
1.10.2008 4:32pm
ejo:
jbg-they were out there planning, though, weren't they. still are. still will be when bush is out of office. or do you think our enemies are gone? did they ever exist? did we have a special duty to recognize Roosevelt's "evil" in interning people or Truman's "evil" in using atomic weapons while ignoring that of the people we were fighting against-it seems, under your strange moral reasoning, yes.
1.10.2008 4:34pm
Anderson (mail):
Right, Mr. Zarkov. And the Supreme Court presumably could coin money, and the President could establish post offices, b/c Article I doesn't expressly give those powers *solely* to the Congress.
1.10.2008 4:35pm
Howard Gilbert (mail):
Re "Al Qaeda isn't a government": On 9/10 the de-facto government of Afghanistan was the Taliban, which controlled 90% of the country. While al Qaeda wasn't a separate government or separate country, it was part of the Taliban military structure and it is difficult to distinguish Taliban from al Qaeda forces. Padilla, for example, enlisted with al Qaeda recruiters and went through basic training at its al Farouq camp, but then his first assignment was three months of infantry guard duty standing with his AK-47 in front of a Taliban facility in Kabul. Then he joined the al Qaeda special operations unit, but after 9/11 he served with a mixed al Qaeda/Taliban force until he got to Pakistan. This produced a decision by a three judge panel in al-Marri v Wright (now being reconsidered en banc) that Padilla was really a Taliban and not an al Qaeda soldier! Remember, 9/11 was conducted by al Qaeda, but it was also approved by Mullah Omar on behalf of the Taliban.

Now the government certainly would like to argue that al Qaeda isn't entitled to the status of a real enemy army, but this is not a position that has been subject to any real analysis or debate. It is not a simple matter that one can simply assert and then dismiss. Were the Chinese Volunteers in Korea a real army? Was the AVG (the Flying Tigers) a legitimate military unit before they were incorporated into the US army after Pearl Harbor? Isn't the Foreign Legion part of the French Army? Wasn't Gilbert du Motier (marquis de La Fayette) entitled to status as a soldier in the Continental Army (but then, was the Continental Army a real army of a real country if you agreed with the British point of view)?

Re "do you have any case law on the legal status of an American citizen who joins an enemy army": the most relevant case law, cited specifically in Padilla v Hanft, is the case of Huber Haupt, a US citizen who joined the German army before Pearl Harbor and who was sent on a mission of sabotage to the US. He was captured in Chicago almost exactly 60 years before Padilla's capture. In ex parte Quirin the Supreme Court ruled that he was an enemy soldier captured on a military mission and therefore was to be treated exactly the same as Germans. His US citizenship meant that he was also guilty of Treason, but the court noted that that was separate from his status as a captured enemy soldier and, although the government would have been able to make the charge against him, they were not obligated to make the charge in order to hold him as a POW or try him on military charges.

There used to be a chase condition. When a US citizen joins a foreign army at war with the US, he commits Treason. However, joining a foreign army at war with the US is also an expatriating offense that used to result in automatic loss of citizenship, and that in turn cancelled out the Treason. Today you cannot lose your citizenship unless you swear out a statement that you intended to give up your citizenship when you committed the act (although then your loss of citizenship is retroactive to the act and again cancels out the Treason).
1.10.2008 4:41pm
Al Maviva (mail):
An absence of proof is not a proof of absence. It's easy to speculate that Padilla and all of AQ, or at least every single member that has been captured, are basically harmless when your speculation doesn't come with any personal cost to you. Interestingly, while the Anderson and crew are really happy to claim dogmatic belief in the unknowable nature of Padilla's intent, John Yoo's evil intent is somehow known to them. I guess at the better law schools, they must pass on some gnostic trick relating to mind-reading.
1.10.2008 4:45pm
Thales (mail) (www):
"In most other contexts, this suit would invite derision. Suppose my tax attorney give me an incorrect opinion. I can sue him for his error, but someone else like the government or Yale has no standing to sue my attorney. This case is ridiculous. It invites people to hate lawyers and the legal system."

Without passing on the standing or merits of suing Yoo for his opinion practice, both of which I agree are shaky, the IRS has actually criminally prosecuted and civily sued tax lawyers for giving incorrect legal opinions and thus aiding the creation of illegal tax shelters. Legal opinion practice can run the gamut of mere legal advice to one's own client, to a lawyer's making an affirmative statement about the law that is to be relied upon in taking action, which may create actionable claims from third parties if the opinion was negligent (or worse). It's not as cut and dried as the quoted passage would have it.
1.10.2008 4:45pm
Mark Field (mail):

Nor does it prohibit anything that John Yoo actually wrote in his memos.


Apparently the Supreme Court went to a different law school:

"There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government."

Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944). And see Brown v. Mississippi, 297 U.S. 278 (1936).
1.10.2008 4:56pm
Anderson (mail):
while the Anderson and crew are really happy to claim dogmatic belief in the unknowable nature of Padilla's intent

Uh, and I said that where? "Dogmatic belief," indeed.

Along the lines that Thales suggests, I actually think that a criminal prosecution of Yoo would be more appropriate than a Bivens suit. I would hope to see a lot of this under the Democrats in 2009 (knock on wood), but I have little faith they'll have the spine to "drag up all that old stuff."
1.10.2008 4:58pm
Randy R. (mail):
Al: "Interestingly, while the Anderson and crew are really happy to claim dogmatic belief in the unknowable nature of Padilla's intent, John Yoo's evil intent is somehow known to them."

We don't have to read Yoo's mind. He has repeatedly advocated for torture, and seems quite proud of his memos. His evil intent is quite well known. The only question is whether you think agree with him or not.
1.10.2008 4:58pm
JosephSlater (mail):
Ejo:

You really believe this, "critics of the Bush administration and they way it has conducted the war HATE AMERICA" stuff don't you? Sad.
1.10.2008 5:01pm
Morat20 (mail):
If Osama Bin Laden accomplished anything, it was to uncover the bedwetters among American society.

I swear to God, I never expected such unreasoning fear and public panic from otherwise rational people.

I fear that actual rational discourse on ANYTHING is impossible until some people manage to reign in their unreasoning fear. I realize 9/11 scared you. It's been 6 years. Have you thought about therapy at this point, since it seems most New Yorkers have managed to go on with their lives quite well without wetting themselves every time they see a Muslim.
1.10.2008 5:01pm
Mark Field (mail):

Because he was unsuccessful, he was not evil?


Uh, yeah. Less evil, at any rate. Unless you think that attempted murder or conspiracy to commit murder >= murder.
1.10.2008 5:01pm
Anderson (mail):
Interesting that Ashcraft (heh) (great cite, Mark) recognizes sleep deprivation as torture. Certainly the Soviets were under no illusions in that regard. They liked it for the same reason the American police did -- leaves no marks.
1.10.2008 5:02pm
Happyshooter:
Uh, yeah. Less evil, at any rate. Unless you think that attempted murder or conspiracy to commit murder >= murder.

You don't?
1.10.2008 5:03pm
Cato:
Yoo and Yale aside, the Constitution DOES NOT PROHIBIT TORTURE. It prohibits torture as a means of punishment. It does not prohibit torture as a means of information extraction, particularly to aliens not on our continent.
1.10.2008 5:04pm
Anderson (mail):
Oops, sorry, hit "post" too soon. See this footnote:

"It has been known since 1500 at least that deprivation of sleep is the most effective torture, and certain to produce any confession desired."

Quoting a 1930 ABA committee report. See, even way back then, the ABA was trying to destroy America.

Read the whole thing, folks.
1.10.2008 5:06pm
Hoosier:
"the Constitution obviously doesn't mean much to you if you're willing to shred it over some wackos in a cave."

Why do people trying to diminish the significance of al-Qaeda always put them in caves? I don't think that's where they live. There's no electricity, for one thing. And they aren't bats.
1.10.2008 5:06pm
Happyshooter:
I realize 9/11 scared you. It's been 6 years. Have you thought about therapy at this point, since it seems most New Yorkers have managed to go on with their lives quite well without wetting themselves every time they see a Muslim.

Are you sane? The reason we have been lucky for 6 years is because the US Military is giving their lives to kill and capture these evil doers overseas. The bad people didn't decide to be our friends after 9/11, they are getting dead or locked up.

Jose, the guy that is the subject of this thread, was coming here to KILL Americans.
1.10.2008 5:07pm
Anderson (mail):
It does not prohibit torture as a means of information extraction

Cato, the justices in Ashcraft disagreed with you. Sorry that you know the Constitution better than they did.

(Sadly, Justice Jackson wrote the dissent - not one of his better moments. "Sovereign state," etc. Whereas the former KKK-er Hugo Black wrote the opinion.)
1.10.2008 5:08pm
wm13:
Thales, the proper analogy would be to a government attorney who writes a tax regulation that is held to be invalid. Can taxpayers who paid taxes because they thought the invalid reg required them to do so sue the attorney who wrote the reg? Can they sue the Commissioner of Internal Revenue for his "illegal" action in promulgating the regulation? What if the regulation hasn't actually been held invalid, but Anderson says it is, can taxpayers sue on those facts?
1.10.2008 5:09pm
PLR:
Yoo and Yale aside, the Constitution DOES NOT PROHIBIT TORTURE. It prohibits torture as a means of punishment. It does not prohibit torture as a means of information extraction, particularly to aliens not on our continent.

Thanks for clearing that up for us.
1.10.2008 5:11pm
Anderson (mail):
And they aren't bats.

Au contraire!
1.10.2008 5:12pm
Yale Grad:
"There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government."

This cite from Ashcraft discusses torture to get people to confess to crimes that they have committed in the past. Torture to obtain information to prevent future attacks by other people, however, is a different matter entirely.
1.10.2008 5:16pm
Hoosier:
Anderson-->>Besides being woefully unsupported by any case law, this proposition also ignores the actual language of the Constitution, which grants the Congress power to "make Rules concerning Captures on Land and Water" and to "make Rules for the Government and Regulation of the land and naval Forces." <<

I am not at all convinced by this reasoning. But I may not know the subsequent jurisprudence. "Captures" seems to indicate seized vessels and the like; especially in the late 18th Century. Or early 19th. No one was suggesting that the 'Amistad' should have been subjected to rough interogation. Right?
1.10.2008 5:17pm
Seamus (mail):
if, between 1942 and 1944, you devoted your life to the representation of Nazis, I would think you found something worthy about them.

Riiiight. And if ACLU lawyers devoted their lives (if three years can be said to be "your life") to representing Nazis wanting to march through Skokie, I guess they must have found something worthy about *them*.

And criminal defense lawyers, who devote their lives (not just three years out of them) to representing murderers, rapists, robbers, arsonists, thieves, burglars, and other assorted malefactors (and once in a blue moon represent an innocent client, just for novelty's sake) must find something worthy about those clients?

It wouldn't have anything to do with wanting to make sure the government follows the rule of law, and doesn't cut corners to get bad guys, would it?
1.10.2008 5:21pm
Mark Field (mail):

This cite from Ashcraft discusses torture to get people to confess to crimes that they have committed in the past. Torture to obtain information to prevent future attacks by other people, however, is a different matter entirely.


Comedy gold. Good luck with that on your next Crim Pro exam.
1.10.2008 5:21pm
ellisz (mail):
how was Padilla allegedly tortured? I know about the waterboarding of KSM, but do not recall details re Padilla's treatment

more to the point of the post, this is a very silly case for the Yale Clinic to bring. Anderson, et al, I respect your views and the passions with which you hold them, but if you're gonna open up govt lawyers to suit based on legal advice they give, you're gonna create a huge disincentive to enter govt service in the first place.
1.10.2008 5:23pm
Cato:
Yale Grad:

Your analysis is quite correct. Moreover, Ashcraft does not even prevent torture for obtaining admissions of past crimes: it merely throws out the confession.
1.10.2008 5:27pm
Anderson (mail):
Torture to obtain information to prevent future attacks by other people, however, is a different matter entirely.

Oh, wow. ACTUAL crime committed? No torture. POSSIBLE FUTURE crime? Torture!

It would be funny if it weren't so sad.
1.10.2008 5:28pm
rarango (mail):
Can Yoo be sued? (very alliterative BTW). Zarkov says no; Anderson says yes; Thales (I think) passes on the question but provides an example of tax lawyers being sued; and wm13's comments re Thales example suggest to me that Yoo cannot. It used to be said that 100 economists lined up end to end could not reach a conclusion; does this also apply to lawyers? As a former government bureaucrat, a recommender, I would like to know my liability. Right now, Zarkov makes the case I can understand the best.
1.10.2008 5:29pm
Anderson (mail):
you're gonna create a huge disincentive to enter govt service in the first place

I think that's a very good point, and there should be a correspondingly high burden of proof. But I've argued that there's a good policy argument for making lawyers chary of offering really, really bad advice.
1.10.2008 5:30pm
Anderson (mail):
very alliterative

Assonance, I think, but who's counting.
1.10.2008 5:31pm
MDJD2B (mail):
Two quotes from Anderson:

"I don't quite get the FDR-baiting, btw. What he did to the Japanese-Americans was wrong, but it was litigated up to the Supreme Court, which held, incorrectly, that it was legal."
And:

Cato, the justices in Ashcraft disagreed with you. Sorry that you know the Constitution better than they did.


So which is it? Do the justices determine what is legal, or do the voices that told you in quote #1 that what the SC did was illegal?

And, BTW, neither legal not constitutional means moral. Law is law and morality is morality.
1.10.2008 5:32pm
Anderson (mail):
MD, if you have an argument why Ashcraft was incorrect on the merits, I am open to persuasion.

Korematsu is widely held (except by Michelle Malkin) to have been a bad decision, wrong on the merits. It's not just some guy on a blog thread whining about it.
1.10.2008 5:41pm
ejo:
well, I would classify a criminal defense attorney differently than I might classify a nazi sympathizer helping his fellow travellers in war time-wouldn't you? we gave one golden example-lynne stewart. she wasn't just doing a job. she was fulfilling her hatred of this country. again, why should I think the Yalies are any different? Representing a Nazi in Skokie or, for that matter, one in Nuremburg after the war was over, differs a great deal from assisting them in 1943, don't you think? I don't buy the criminal defendant analogy. as to the "bedwetter" silliness, could the brave civil libertarians here please inform all of us of how brave they were on 9/11? let us know, so that when there is a future attack, us cowards can meet their standards. did they call their loved ones and family members to make sure they were still alive-surely not, that would have been for bedwetters. did they worry that something was heading for their cities-I can't believe they did for they were not bedwetters. I imagine they don't even remember where they were, given the insignificance of the event, when the WTC went down.
1.10.2008 5:42pm
ellisz (mail):
Anderson, you can set the burden of proof at the moon, but all that does is speak to ultimate liability; it does little to forestall litigation, the slow and expensive grind of being a defendant in a lawsuit. Few people would be assured to know that they could get a lawsuit dismissed at summary judgment after spending 50-100k out of pocket.

also, you find Yoo beyond the pale, but others find different things appalling. Recall the 90s, when many people were angry re Ruby Ridge, waco, E gonzalez. . . Presumably govt lawyers were involved in each of those messes to some degree. Ok to sue them?

finally, I think you're missing the commenters' point about the utility of torture to gain info about future attacks. the notion is that torture in that event yields info that can be crosschecked and verified, and thus is more viable than torture to obtain confessions re past acts, which come cheap and easy. I'm not in favor of torture in any case, but have few doubts about its utility - few among us would withhold or fib about our PIN # if someone had a gun at our head and told us it would go off if the given number didn't result in money flowing from the ATM.
1.10.2008 5:45pm
wm13:
In fairness, ejo, my recollection is that several lefty writers and academics leapt immediately into the fray on 9/11, asserting on that very day in some cases that the whole event had been stage managed by Bush and/or praising and valorizing the terrorists. I'm not saying Anderson or Mark Field or any regular commentator here was in that category.
1.10.2008 5:48pm
Anderson (mail):
Ellisz, the reasons why torture is an inferior method of obtaining reliable evidence are all over the internet, and if you're unfamiliar with them, I can infer that you're not terribly interested in having me explain them to you.

As for the policy argument re: OLC, I am much more worried at having OLC produce partisan, shoddy advice without fear of sanction, than I am at having a few OLC lawyers improperly prosecuted. YMMV.
1.10.2008 5:50pm
Brian G (mail) (www):
I have an question. If Padillia is only seeking $1 from Yoo, why doesn't Yoo just default? I think that is an interesting question that I would love to see addressed in this blog.
1.10.2008 5:52pm
PLR:
And, BTW, neither legal not constitutional means moral. Law is law and morality is morality.

Point taken. Being evil is not itself a criminal offense, else our prisons would be full of mothers-in-law.
1.10.2008 5:54pm
Anderson (mail):
why doesn't Yoo just default?

B/c Padilla also wants a declaratory judgment as to Yoo's wrongdoing, which would cause Yoo all kinds of trouble, to say nothing of Yoo's erstwhile employers.
1.10.2008 6:01pm
ellisz (mail):
Anderson, if you don't think you'd cough up every fact in your head under physical duress you're kidding yourself or are a truly exceptional person. how do you think criminals get ATM PIN #s from their victims?

re Yoo and default - i assume there are collateral estoppel concerns as well w/r/t potential claims by other detainees.
1.10.2008 6:14pm
holdfast (mail):
Putting aside the morality of it for now, torture can still be an effective method of obtaining information where such information can be independently verified. If I torture someone a bit, then tell them to confess to a certain crime, and they do, then all I have is their word, under torture - not very useful at all since most rational folks would say whatever the torturer desired to make the pain stop - I most likely would. If, however, I torture KSM to get certain information - say the location of an Al Quaeda safehouse in Karachi - then I raid that house and see what and/or who is inside. If I find wanted members of Al Quaeda, documents, explosives, etc., then I will know that KSM is telling the truth. If I find none of those things, then I will assume he is lying, and the torture will commence again, this time more intensely. If he was telling the truth and the house happended to be cleaned out, then it is his hard luck. In this way, torture can indeed be very effective, though it is certainly not guaranteed to be so.

Even assuming that I believe that such use of torture is the correct thing to do, I still could not see attempting to present the evidence thus gathered to a court - and I would hope that the court would reject any attempt to do so. The purpose of this use of torture would be to obtain the information necessary to disrupt AQ operations and prevent attacks, not to obtain criminal convictions (I would think that KSM could be convicted on his prior public statements). Spending umpteen years and millions of dollars on long, drawn out trials to convict a few flunkies (as happened after the first WTC attack). Is a recipe for losing the war - while we prosecute five guys, they will train ans despatch 500 more. The point is to kill them where possible, and disrupt their operations where we cannot kill them - and to do so in such a way as to destroy their morale and show them that their cause is hopeless - teach them that every time more than two gather in one place, they must constantly watch the sky for the next JDAM. That is war - not policing, not criminal prosection, but war. There are too many in the US, both Dems and Repubs who do not understand this.
They do not understand that there are far more potential Al Quaeda recruits than there are places in the federal prison system.
1.10.2008 6:17pm
Anderson (mail):
Anderson, if you don't think you'd cough up every fact in your head under physical duress you're kidding yourself or are a truly exceptional person.

Like I said, Ellis, you're ignorant on the subject. If that's okay with you, then fine. (You do seem awfully well informed about how to obtain an ATM PIN from someone, however.)

I will leave you with this brainteaser: on your own admission, I could torture you into admitting that torture doesn't actually work. Does that example suggest anything to you?
1.10.2008 6:17pm
Randy R. (mail):
" I'm not in favor of torture in any case, but have few doubts about its utility - few among us would withhold or fib about our PIN # if someone had a gun at our head and told us it would go off if the given number didn't result in money flowing from the ATM."

But of course, we aren't talking about ATMs. We are talking about future terrorist attacks. If I were totally innocent, and someone held a gun to my head, or tortured me, I would of course confess that there are imminent attacks planned on NYC, Washington, DC and so on. I would give them whatever specifics they want.

Then the gov't will go around on high alert for a few days, and nothing happens. Then when they ask me why did I lie, I will say because I had no choice.

Now, if I were totally a terrorist, and I really did plan attacks, I would give them the same lies. I would tell them there is an attack planned on NYC for June 30, while secretely knowing that the attack is really planned for DC on May 30. Guess what? Kaboom! And the feds are played for patsies.

For this very reason, we gave up torture (as did the Nazis) in WWII. in fact, at a recent reunion of interrogators from that war, they said that they got more information from playing chess with a Nazi general than by doing any rough stuff.

Imagine that -- playing chess is more effective at getting information than torturing someone! But of course, you all dismiss that, because it simply isn't macho enough to play a board game. Water boarding makes you feel good and makes you look tough. But neither are sufficient to shred our treaties on the Geneva Convention.
1.10.2008 6:18pm
pjohnson (mail):
Didn't Cully Stimson get tarred and feathred and run out of town for questioning law firms' choice to represent accused terrorists? Where's the outrage against the WSJ?
1.10.2008 6:21pm
Anderson (mail):
Holdfast, the point is that torture isn't necessary to obtain the information. Professional interrogators, the kind who work for the Army and the FBI, have longstanding methods for obtaining information from hostile subjects through "rapport building." Mark Bowden had a good article a while back on how we nailed Zarqawi using intel obtained in this manner from a prisoner.

Torture is not an intel-gathering tool, never has been. Look at its historical uses -- what's it been used for? To obtain confessions. It works really well for that. As a method of obtaining the truth, not so much.

--Gotta go, torture fans, or my wife will be the one torturing a confession out of me.
1.10.2008 6:25pm
DangerMouse:
This is just another attempt to control foreign policy via litigation and the Courts. The attempt is to punish Executive Branch attorneys for rendering legal advice that the ACLU and other left-wingers disagree with. I can definitely foresee this tactic being used not only to control foreign policy, but also domestic policy. Hence, pretty soon we'll see the ACLU suing Executive Branch attorneys for giving legal advice as to immigration status, abortion regulation, criminal law, and environmental regulation.

Attorney X should be personally sued because he wrote a memo that said Abortion Regulation X can be interpreted this way! Or, Attorney X can be personally sued because he wrote a memo that said Environmental Regulation Y can be interpreted this way! Gosh, this is fun.
1.10.2008 6:31pm
ellisz (mail):
Anderson and Randy, as holdfast notes, you're phrasing the questions too broadly. I assume you don't ask "is there an attack planned?" You ask, "where can I find X?" And then you go look at the assigned place, and come back if he or it is not there. But, again, I'm not in favor of it, so its utility is beside the point to me.

Anderson, the reason for the ATM example is a recent awful case in Ga where that occurred. You normally make your points well, your pettiness here detracts from them.
1.10.2008 6:33pm
Brian K (mail):
then I will know that KSM is telling the truth. If I find none of those things, then I will assume he is lying, and the torture will commence again, this time more intensely.

this is a ridiculous claim. there is nothing that can prove to you that torture doesn't work. if he tells the truth, torture works. if he doesn't tell the truth, that just means he wasn't tortured enough or properly.
1.10.2008 6:37pm
I've been away (mail):
Was Yoo wrong?
1.10.2008 6:38pm
Dan Hamilton:

Torture to obtain information to prevent future attacks by other people, however, is a different matter entirely.

Oh, wow. ACTUAL crime committed? No torture. POSSIBLE FUTURE crime? Torture!

It would be funny if it weren't so sad.


IT IS NOT ABOUT CRIME. Terrorists are not criminals.

When are you people going to learn this. The Terrorists are not doing crimes against us and almost everybody else, they are fighting a WAR. Have you got that yet??

Our whole legal system is set up to find and bring to trial people who have commited crimes. All after the fact.

Now YOU want to treat terrorist as criminals. YOU want to wait until they have commited a crime. Please tell me just how are we going bring the 19 9/11 criminals to trial???

(I am sorry, I just can't think of anything other then 'stupid'. Everything else is worse)

There is nothing as stupid as wanting to treat terrorists as criminals. Our laws, LEOs, the whole legal system can't stop terrorists because until they commit the act they have broken no laws. After the terrorist act has been commited the terrorists don't CARE what happens. They have been successful.

Our Legal system reacts to crimes, it does not prevent them. To try and make it fight terrorists as criminals will destroy the rights that you say you are trying to save. You have to create CRIMES OF INTENSION NOT OF COMMISION. Those are THOUGHT CRIMES. Only the stupid would want such laws.
1.10.2008 7:03pm
Brian K (mail):
The Terrorists are not doing crimes against us and almost everybody else, they are fighting a WAR.
if terrorists are fighting a war, that means they are soldiers. if they are soldiers, then all the treaties, conventions and laws that apply to soldiers also apply to them and when they are captured they are POWs. and you can't legally torture a POW.

the whole legal system can't stop terrorists because until they commit the act they have broken no laws.
i take it you've never heard of "conspiracy to commit murder"?

Our Legal system reacts to crimes, it does not prevent them.
it's good to know that the system of punishments that our criminal laws are built on are worthless. why even have jails at all if they don't prevent crimes?
1.10.2008 7:16pm
Jim Rhoads (mail):
If I recall correctly, Yoo's legal analysis used reasoning consistent with SCOTUS's reasoning in Quirin and Koramatsu, and Jackson's "Suicide Pact" dissent.

If he was asked to make the most aggressive position available to the CIC in this situation, what is wrong with using this reasoning, even if, as Anderson says, most legal "experts" are critical of this reasoning.
1.10.2008 7:23pm
MarkField (mail):
Dan, I think you need to think through the logic of your post again. By putting terrorism into a separate category, you have done just what you say you don't want to do: create thought crimes. That's what people are arguing for on this thread -- to torture someone for information about crimes which they have thought about but not yet committed.

No, we are not at war with terrorists. There are lots of reasons for that, but one is that treating it as a war dignifies them and makes them appear more significant than they really are. If we were at war with them, we could not punish them for at least some of their actions; soldiers can't be punished for their actions on the battlefield. To the extent there are exceptions to that rule, it's because we treat the conduct as criminal (violation of the laws of war, etc.). When we treated Tim McVeigh as a criminal, we were behaving the way we should be behaving with Usama bin Laden.*

Changing the subject, I agree with Anderson (especially now that he's "the Anderson") about the disutility of torture, but I don't care if torture is useful or not. It's prohibited regardless of its utility.

*Subject to some exceptions not worth listing here.
1.10.2008 7:25pm
Seamus (mail):
IT IS NOT ABOUT CRIME. Terrorists are not criminals.

Really? That's exactly the argument the IRA made back in the 70s and 80s, in support of their position that they shouldn't be subject to the jurisdiction of the civil courts, made to wear prison uniforms, etc. We (meaning the forces of civilization) thought the argument was bullshit then. Why are we changing the rules now? Is the fight against terrorism just a game of Calvinball?
1.10.2008 7:38pm
therut:
FDR would have had him hung.
1.10.2008 7:38pm
DeezRightWingNutz:
Now, if I were totally a terrorist, and I really did plan attacks, I would give them the same lies. I would tell them there is an attack planned on NYC for June 30, while secretely knowing that the attack is really planned for DC on May 30. Guess what? Kaboom!


And if I were really being tortured for my PIN, I'd just give the wrong number, then BOOM, no money!

Wait, that wouldn't work? Why not? And how is this different from a potential terrorist plot? You think that if you said, "The attack happens in May," nothing happens between then and May? No one follows up on your story to see if the people you implicated are in fact plotting an attack?

Why is torture even material to this hypo? You could lie in any interrogation, whether you're being tortured or not.

I wouldn't be surprised if the costs of torture, even setting aside the moral problems, outweigh the benefits. But "people could just lie when they're tortured" doesn't seem to be a big problem to me, at least not any more than any other interrogation method.
1.10.2008 8:02pm
MDJD2B (mail):

Korematsu is widely held (except by Michelle Malkin) to have been a bad decision, wrong on the merits. It's not just some guy on a blog thread whining about it.

Bad decision or not, if the SC rendered it, it is legal-- it is the law. I was pointing out the contradiction between your two statements, not commenting on whether I liked Korematsu.
1.10.2008 8:05pm
MarkField (mail):

Bad decision or not, if the SC rendered it, it is legal-- it is the law.


I doubt you'd get very far if you cited it.
1.10.2008 8:11pm
Al Maviva (mail):
As for the policy argument re: OLC, I am much more worried at having OLC produce partisan, shoddy advice without fear of sanction, than I am at having a few OLC lawyers improperly prosecuted.

Okay, fine, Anderson. Do us a favor and articulate a justiciable standard that the rest of us can rely on when looking at a government attorney's legal opinions, to determine whether it's of high quality and non-partisan, or the opposite you posit, shoddy and partisan.

I presume you'd favor prosecuting government attorneys who produce shoddy non-partisan advice as well, since the resulting harm would be no different, only the mens rea (intent, partisanship, v. recklessness or negligence).
1.10.2008 8:29pm
jukeboxgrad (mail):
ejo: "do you think our enemies are gone?"

Like lots of others, that particular GOP talking point is highly elastic, depending on the needs of the moment. Let me remind you of someone who seemed to "think our enemies are gone." This is what Bush said while standing in front of the banner that said "Mission Accomplished:"

we destroyed the Taliban


I also remember when he said this (9/27/04):

Taliban no longer is in existence.


You folks should pick one story and stick with it.

"did we have a special duty to recognize Roosevelt's 'evil' in interning people or Truman's 'evil' in using atomic weapons while ignoring that of the people we were fighting against"

It would be hard to think of a better example of an asinine false choice. None of those evils should be ignored.
1.10.2008 8:41pm
jukeboxgrad (mail):
al: "It's easy to speculate that Padilla and all of AQ, or at least every single member that has been captured, are basically harmless when your speculation doesn't come with any personal cost to you."

It's easy to speculate that Padilla and all of AQ, or at least every single member that has been captured, are evil terrorists when your speculation doesn't come with any personal cost to you.

The fact is that many of the people in Gitmo appear to be innocent bystanders. That's explained here:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).
1.10.2008 8:41pm
jukeboxgrad (mail):
morat: "If Osama Bin Laden accomplished anything, it was to uncover the bedwetters among American society. I swear to God, I never expected such unreasoning fear and public panic from otherwise rational people."

Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.


"it seems most New Yorkers have managed to go on with their lives quite well without wetting themselves every time they see a Muslim."

Exactly. I find it very ironic that many/most of the bedwetters seem to be concentrated in places that are very unlikely to ever make it onto a list of terrorist targets. Conversely, NYC, the place that was actually attacked, did not suddenly switch from blue voting to red voting.
1.10.2008 8:41pm
jukeboxgrad (mail):
anderson: "Interesting that Ashcraft … recognizes sleep deprivation as torture."

Bush's own State Department has declared that certain techniques we use (like sleep deprivation) are torture when done by other countries. IOKIYAR.

The following is from the State Department Country Report on Human Rights Practices, regarding Tunisia (2/28/05):

… security forces reportedly tortured detainees to elicit confessions and political prisoners to discourage resistance. The forms of torture included: electric shock; confinement to tiny, unlit cells; submersion of the head in water; beatings with hands, sticks, and police batons; suspension from cell doors resulting in loss of consciousness; cigarette burns; and food and sleep deprivation.


(Emphasis added.) The following is from the State Department Country Report on Human Rights Practices, regarding Kenya (2/23/01):

Common methods of torture practiced by police included hanging persons upside down for long periods, genital mutilation, electric shocks, and deprivation of air by submersion of the head in water.


"Submersion of the head in water" is a way of using water to asphyxiate. This seems indistinguishable from what we're doing.

Sleep deprivation was also called a form of torture. We do that, and it was authorized by Bush. FBI emails proving this are discussed here, and can be read here and here.

So while we condemn other countries for torture, we've been doing it ourselves, under Bush's Executive Order. So aside from being a war criminal, he's also a hypocrite.
1.10.2008 8:42pm
jukeboxgrad (mail):
hoosier: "Why do people trying to diminish the significance of al-Qaeda always put them in caves? I don't think that's where they live. There's no electricity, for one thing. And they aren't bats."

I sincerely enjoy your sense of humor.

I think it's probably more realistic that AQ is run from an office suite within easy commuting distance of the White House. But you probably don't want to get me started on that.
1.10.2008 8:42pm
jukeboxgrad (mail):
happy: "The reason we have been lucky for 6 years is because the US Military is giving their lives to kill and capture these evil doers overseas."

You obviously haven't bothered reading what was said here and here.
1.10.2008 8:42pm
jukeboxgrad (mail):
yale: "Torture to obtain information to prevent future attacks by other people, however, is a different matter entirely."

Presumably you acknowledge that what you're talking about is a violation of US Code Title 18, Part I, Chapter 113C.
1.10.2008 8:42pm
jukeboxgrad (mail):
ellis: "if you're gonna open up govt lawyers to suit based on legal advice they give, you're gonna create a huge disincentive to enter govt service in the first place."

I think "you're gonna create a huge disincentive to enter govt service" for amoral folks like Yoo. Good idea.

"few among us would withhold or fib about our PIN # if someone had a gun at our head and told us it would go off if the given number didn't result in money flowing from the ATM."

That example works, but I have yet to hear a verified real-world example of torture saving a single life. And I don't just mean torture by us, recently. I mean anyone, anywhere, anytime.
1.10.2008 8:42pm
jukeboxgrad (mail):
wm: "my recollection is that several lefty writers and academics leapt immediately into the fray on 9/11, asserting on that very day in some cases that the whole event had been stage managed by Bush and/or praising and valorizing the terrorists"

I don't recall that, and it would interest me to see some proof.

Anyway, I think it's worth recalling that Bush's ratings soared immediately to about 90% (and proof of that is readily available).
1.10.2008 8:42pm
jukeboxgrad (mail):
hold: "They do not understand that there are far more potential Al Quaeda recruits than there are places in the federal prison system."

What you do not understand is that your approach to the problem is guaranteed to produce an endless flow of new "Al Quaeda recruits."

Unless your concept is that we should simply wipe out Islam. I have seen that exact idea promoted on righty blogs, by the way.
1.10.2008 8:43pm
jukeboxgrad (mail):
deez: "But 'people could just lie when they're tortured' doesn't seem to be a big problem to me, at least not any more than any other interrogation method."

I think the point is that other methods (e.g., rapport-based) are more likely to produce reliable information.
1.10.2008 8:43pm
Randy R. (mail):
Jukebox: "That example works, but I have yet to hear a verified real-world example of torture saving a single life. And I don't just mean torture by us, recently. I mean anyone, anywhere, anytime."

You forgot TV. The show 24 Hours regularly has situations where Jack has someone tortured, and it saves lives. The red staters eat this up because they think it is true.

So our foreign policy is now based on the writings of fictional tv. And they complain that WE are the naive ones!
1.10.2008 9:28pm
Duncan Frissell (mail):
What you do not understand is that your approach to the problem is guaranteed to produce an endless flow of new "Al Quaeda recruits."

Western Civ has had a lot of experience in dealing with death cults. The Sapaniards with the Central and South American death cults and us with the Japanese and German death cults.

We established that an effective way to deal with death cults is to kill them until they get tired of dying. The Aztecs, Incas, Japs, and Nazis aren't bothering us much any more, are they. And it turned out you didn't have to kill that large a percentage of the population to achieve the desired effect.

As an anarchist, of course, I'd prefer enhtreprenurial forces to do the killing but there doesn't seem to be very wisespread support for that position.

In any case, killing bad people is fine by me and those who want to force submission (Islam in Arabic) on us seem a worthy target.

Of course, anti Western commies probably disagree. Good thing they've given up the gun.
1.10.2008 9:36pm
jukeboxgrad (mail):
Randy, good point.
1.10.2008 9:42pm
jukeboxgrad (mail):
duncan: "it turned out you didn't have to kill that large a percentage of the population to achieve the desired effect"

What percentage of the world Muslim population do you think we need to kill in order "to achieve the desired effect?"
1.10.2008 9:42pm
Tony Tutins (mail):
And what does this say about academic freedom, that Yoo is in no danger of losing tenure at UC Berkeley of all places? I wonder what he would have to do to get fired?

Reading excerpts of the Yoo-Delahunty memos reminds me of the time when the US insisted that a high contracting party go beyond a narrow reading of the Geneva Conventions: when the US intervened in the Vietnamese civil war. There was no room under Article 3 for an intervenor from another country. Thus John McCain's torture at the hands of the North Vietnamese was perfectly allowable under a Yoo-type reading of the Geneva Conventions.
1.10.2008 9:58pm
sashal (mail):
Yoo should be tortured and then executed. Then his body should be flown to Moscow and buried next to Stalin's or better yet , next to NK dictator in Phenian, they are all from the same class of dictatorial assholes - wannabes.
Padilla should be treated in accordance to USA law.
1.10.2008 9:59pm
Hoosier:
"Yoo should be tortured and then executed. Then his body should be flown to Moscow and buried next to Stalin's or better yet , next to NK dictator in Phenian, they are all from the same class of dictatorial assholes - wannabes.
Padilla should be treated in accordance to USA law."

Umm . . . yeah.

Tony Tunis: "Thus John McCain's torture at the hands of the North Vietnamese was perfectly allowable under a Yoo-type reading of the Geneva Conventions."

How do you conclude that it was "allowable" under his interpretation of the Geneva Conventions? Does the fact that he was a uniformed combatant in a regular military make no difference in his case?

(NB: I'm not being argumentative, Tony. I just have never heard this case made before now.)
1.10.2008 10:11pm
Anderson (mail):
especially now that he's "the Anderson"

Hm. You know, I missed that. Sounds like ... a brand of particularly low-grade single malt Scotch.

JBG and others, thanks for picking up the thread.

Ellisz, sorry if you took me to be implying that you were an ATM bandit -- the subject of American torture is so dejecting to me, I resort to low humor even more often than is my wont.

If torture were as simple as "what's the PIN?" or "dammit, do I cut the RED wire or the GREEN wire?" then we would all be much safer. We're not. Torture is used to comfort those in power, by giving them the answers they want to hear.

Somehow, we were able to interrogate fanatical Japanese soldiers and Waffen-SS veterans in WW2 without feeling the need to torture them. But now, we're confronted with History's Greatest Monsters and all of a sudden we have to torture?

Just goes to show the moral and intellectual void in our White House ... and our Congress ...
1.10.2008 10:16pm
Puzzled:
Anderson wrote:


"I don't quite get the FDR-baiting, btw. What he did to the Japanese-Americans was wrong, but it was litigated up to the Supreme Court, which held, incorrectly, that it was legal."


Anderson's cavalier dismissal of FDR's egregious violation of civil liberties -- probably the worst violation of the past century -- suggests that Anderson, like too many liberals, are motivated more by a burning hatred of President Bush than true concern about civil liberties or the Constitution.

Posters here are outraged that Padilla -- a convicted Al Qaeda terrorist who wanted to kill Americans (setting aside whether he planned a dirty bomb attack) -- was subjected to sleep deprivation, and are calling President Bush a "war criminal."

But you hear mealy-mouthed statements when it's mentioned that FDR signed an executive order that forcibly removed tens of thousands of innocent native-born American citizens from their homes and placed them into internment camps.

And let's not forget that FDR set up a military commission to try an American citizen accused of spying for German and executed him.

Is FDR a war criminal?

Or, for that matter, is Truman a war criminal?
1.10.2008 10:17pm
Jim Rhoads (mail):
Sashal is a master of sarcasm.

Lincoln said a lawyer's time and advice is his stock in trade.

I am afraid on this thread, there is only one "correct" answer to the issue Yoo addressed. After litigating hundreds of cases in courts across this country and overseas for the last 40 years, I have seen very few situations in which there was but one result possible.

That is why this thread is so interesting. The CW here is that the legal issues on which Yoo opined was so clearcut that but one opinion was possible. I confess that I am not so sure.
1.10.2008 10:19pm
Hoosier:
Randy R.: "You forgot TV. The show 24 Hours regularly has situations where Jack has someone tortured, and it saves lives. The red staters eat this up because they think it is true."

Evidence?

Or is you belief that we can we just assume that people who live where I live are naive? For someone who hates stereotyping of people based on sexual preference, [write your own conclusion to this sentence].
1.10.2008 10:28pm
jukeboxgrad (mail):
anderson: "Torture is used to comfort those in power, by giving them the answers they want to hear."

Funny you should mention that. Here's a real-life story of exactly that, from a Senate report, when it was still in GOP hands (pdf, p. 79-82):

In January 2004, Ibn Shaykh al-Libi, the source of reports on al Qa'ida's efforts to obtain CBW training in Iraq, recanted the information provided. Al-Libi said he had a "strong desire to tell his entire story and identify why and how he fabricated information since his capture." Al-Libi claimed that he fabricated "all information regarding al-Qa'ida's sending representatives to Iraq to try to obtain WMD assistance." Al-Libi claimed that to the best of his knowledge al-Qa'ida never sent any individuals into Iraq for any kind of support in chemical or biological weapons, as he had claimed previously [REDACTED].

([REDACTED]) Al-Libi told CIA debriefers in January 2004 that when he was detained by the United States in early 2002 one of his American debriefers had told him that he had to tell "where bin Laden was and about future operations or the U.S. would give al-Libi to [another foreign service.]" [REDACTED] Al-Libi claimed that the debriefers told al-Libi that he would have to sleep on the floor of his cell if he did not talk. Later, according to al-Libi, debriefers repeated the threat to send al-Libi to a foreign country [REDACTED], instructed him to remove his heavy socks and gloves, and placed him on the floor of his cell. Although al-Libi was only on the cold floor for fifteen minutes, he claimed he "decided he would fabricate any information the interrogators wanted in order to gain better treatment and avoid being handed over to [a foreign government.] [REDACTED].

(U) According to al-Libi, after his decision to fabricate information for debriefers, he "lied about being a member of al-Qa'ida. Although he considered himself close to, but not a member of, al-Qa'ida, he knew enough about the senior members, organization, and operations to claim to be a member." "Once al-Libi started fabricating information," he claimed, "his treatment improved and he experienced no further physical pressures from the Americans."

([REDACTED]) After his transfer to a foreign government [REDACTED], al-Libi claimed that during his initial debriefings "he lied to the [foreign government service] [REDACTED] about future operations to avoid torture." Al-Libi told the CIA that the foreign government service [REDACTED] explained to him that a "long list of methods could be used against him which were extreme" and that "he would confess because three thousand individuals had been in the chair before him and that each had confessed."

([REDACTED]) According to al-Libi, the foreign government service [REDACTED] "stated that the next topic was al-Qa'ida's connections with Iraq...This was a subject about which he knew nothing and had difficulty even coming up with a story." Al-Libi indicated that his interrogators did not like his responses and then "placed him in a small box approximately 50 cm x 50 cm." He claimed he was held in the box for approximately 17 hours. When he was let out of the box, al-Libi claims that he was given a last opportunity to "tell the truth." When al-Libi did not satisfy the interrogator, al-Libi claimed that "he was knocked over with an arm thrust across his chest and he fell on his back." Al-Libi told CIA debriefers that he then "was punched for 15 minutes."

(U) Al-Libi told debriefers that "after the beating," he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa'ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa'ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that "this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice [sic] the 50 square centimeter box and given food."

([REDACTED]) According to al-Libi, several days after the Iraq nuclear discussion, the foreign intelligence service debriefers [REDACTED] brought up the topic of anthrax and biological weapons. Al-Libi stated that he "knew nothing about a biological program and did not even understand the term biological." Al-Libi stated that "he could not come up with a story and was then beaten in a way that left no marks." According to al-Libi, he continued "to be unable to come up with a lie about biological weapons" because he did not understand the term "biological weapons."

(U) In February 2004, the CIA reissued the intelligence reporting from al-Libi to reflect the recantations.


(Emphasis added.) What's interesting about this episode is that it tends to create the impression that we're happy to use torture to produce bad information, as long as the information is politically useful.
1.10.2008 10:30pm
MarkField (mail):

especially now that he's "the Anderson"

Hm. You know, I missed that. Sounds like ... a brand of particularly low-grade single malt Scotch.


The head of the O'Neill clan -- traditionally king of Ireland -- was commonly referred to as "the O'Neill".


After litigating hundreds of cases in courts across this country and overseas for the last 40 years, I have seen very few situations in which there was but one result possible.


I agree that there aren't many. Slavery. The Holocaust. Torture. Genocide. A few others, perhaps. Not many, but there are some.
1.10.2008 10:31pm
Tony Tutins (mail):
Hoosier: The war in Vietnam was a civil war, with both South Vietnam and North Vietnam fighting for control of the country. There was also a third force, the Viet Cong. Under the Geneva Conventions, a civil war is purely civil, between a High Contracting Party and an internal fighting force that is not a nation state. The Geneva Convention that covers civil war does not accommodate third-party intervenors, although South Vietnam and the Viet Cong were both covered. Thus the US was not privileged under Article 3. We never declared war on Vietnam, so our argument that the Vietnam War was a war between nation states was extremely weak. So McCain was not technically entitled to any consideration under the Geneva Conventions.

But our diplomats were persuasive enough that North Vietnam eventually agreed that the POW convention should apply. Here we have a fighting force (al Qaeda) that is neither part of the US (where Article 3 would apply) nor an independent nation state (where the Geneva Convention pertaining to POWs would apply.) Yoo decided that none of the Geneva Conventions applied, and no one representing al-Qaeda argued otherwise.
1.10.2008 10:31pm
Toby:

if terrorists are fighting a war, that means they are soldiers. if they are soldiers, then all the treaties, conventions and laws that apply to soldiers also apply to them and when they are captured they are POWs. and you can't legally torture a POW.

One of the more fatuous comments among many on this thread. Please expain again the application of the treaty to non-signatories....
1.10.2008 10:59pm
Hoosier:
Tony Tutins:

OK. Thanks. I wasn't sure what you meant.

I can't agree with your analysis, then. The Vietnam War was a civil war as a matter of military history, at least in my assessment. But that doesn't answer the legal issues raised by the war. A few points:

1) Whether we did or did not declare war did not change obligations under the Geneva Conventions. These applied in Korea, which was also an undeclared war. Furthermore, the RVN regime *did* declare a state of war (1965). So the tendency to call it an "undeclared war" is not very accurate, despite its frequent repetition.

2) Both Hanoi and Saigon agreed to the 1949 Convention (after 1956), which strikes me as coming rather close to dispositive: The Convention framework allowed both regimes to be party to the framework.

3) South Vietnam was recognized as a nation by almost 90 sovereign countries. North Vietnam by fewer than 30. In international law, practice counts for quite a lot. (Consider that the Holy See's status as a sovereign nation under international law is frequently justified by the fact that so many nations treat it like a sovereign nation in diplomatic practice.) RVN exchanged ambassadors with other nations, participated in UN bodies, and was to be admitted to the UN as a full member until the USSR vetoed this decision.

4) Nations other than the US treated this as a cross-border war, and intervened militarily. Australia, New Zealand, and Korea all sent significant (for the size of those nations) forces to fight for the maintenance of the RVN.

5) Finally, the ICRC acted as if the Geneva rules applied. In pursuance of the rules, they filed complaints against both North and South Vietnam for violations.

It can be a challenge to determine what international law *is* in cases of foreign intervention in a military conflict. But in this case, the weight of evidence strikes me as strong. The definition of US POWs as "pirates" by the DRV regime had no basis in law. And the treatment of these POWs was a violation of the Geneva agreements. Other arguments tend to be based upon an a priori bias against the RVN. There is no justification for this bias, however, of which international law need be cognizant.
1.10.2008 11:09pm
jukeboxgrad (mail):
hoosier: "Evidence?"

A few reference points. 5/4/06:

After more than three years of combat and nearly 2,400 U.S. military deaths in Iraq, nearly two-thirds of Americans aged 18 to 24 still cannot find Iraq on a map


On 6/23/06, the Heritage Foundation ran an event with this name:

"24" and America's Image in Fighting Terrorism: Fact, Fiction, or Does it Matter?


The host was Rush. Chertoff attended.

I think a lot of people have a hard time telling the difference between fact and fiction. How many people think Saddam did 9/11? And I think a certain kind of person who has a hard time separating fact from fiction makes up an important segment of Bush's base. I think Bush exploits this deliberately and expertly. These opinions are informed by the fact that I've spent a few years participating in righty blogs (where people often say, quite seriously, that they think I'm paid by AQ).

So I can't prove it, but I think some number of 24-watchers think it's a documentary. And a much larger number realize it's nominally fiction, but think it's an accurate reflection of reality
1.10.2008 11:10pm
Andrew J. Lazarus (mail):

if, between 1942 and 1944, you devoted your life to the representation of Nazis I would think you found something worthy about them.
The Quirin defendants had some of the top defense counsel in the United States. Standards were different then, I guess. Ouch.
1.10.2008 11:14pm
Hoosier:
jukebox--Has Heritage moved to the South or Midwest, then? Maybe to Utah?

As to the kids and the maps--As the Germans say: "Ja, und?"
1.10.2008 11:15pm
Andrew J. Lazarus (mail):

Yoo and Yale aside, the Constitution DOES NOT PROHIBIT TORTURE. It prohibits torture as a means of punishment. It does not prohibit torture as a means of information extraction, particularly to aliens not on our continent.
However, treaties signed and ratified by us, and incorporated into statute law, prohibit torture absolutely and in all cases whatsoever.

The Yoo doctrine is that the President may override such statute law. If only Bill Clinton had thought to abrogate the sexual harrassment and perjury statutes, or is this another Republican-only rule?
1.10.2008 11:22pm
Brian K (mail):
Please expain again the application of the treaty to non-signatories....

when and if we ever prosecute a terrorist in the current "war" for torturing an american soldier, are you going to argue that the terrorist did nothing wrong because he is a non-signatory?
1.10.2008 11:26pm
Randy R. (mail):
Puzzled: "But you hear mealy-mouthed statements when it's mentioned that FDR signed an executive order that forcibly removed tens of thousands of innocent native-born American citizens from their homes and placed them into internment camps. "'

Who's mealy-mouthed? Everyone who has opined on this has condemnd FDR's actions. And this is a perfect of example of executive powers run amok for no good reason. No one has ever argued that locking up Japanese-Americans saved any lives.

Hoosier:"Or is you belief that we can we just assume that people who live where I live are naive?"

Nope. It's people who assume that a) torturing people gets real and valuble information, and b) that there is no other way to get real and valuable information, who are the naive ones. Most people's viewpoints on this administration's use of torture pretty much line up with red state and blue state. Not all, of course, but most. But if you wish to argue that red staters are against all this water boarding and therefore prove me wrong, please go ahead.
1.10.2008 11:29pm
Mark Field (mail):

Please expain again the application of the treaty to non-signatories....


The Supreme Court decided this issue in Hamdan (pdf):

"there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3 ... provides that in a "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," certain provisions protecting "[p]ersons 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 . . . detention." ...

The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being "'international in scope,'" does not qualify as a "'conflict not of an international character.'" 415 F. 3d, at 41. That reasoning is erroneous. The term "conflict not of an international character" is used here in contradistinction to a conflict between nations. ... Common Article 3 ... affords some minimal protection,falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory "Power" who are involved in a conflict "in the territory of" a signatory." Pp. 66-69.

Since Afghanistan is a "contracting party" and the conflict takes place on its territory, Common Article 3 applies.
1.10.2008 11:38pm
CrazyTrain (mail):
The WSJ is one of the best papers in the country. Its editorial page, however, is a joke. This kind of snark is something you would find on a 2nd rate wingnut blog -- it is not even close to a serious argument. You would never find such dismissive crap on any other serious newspaper's editorial page -- whether you agree with it or not. Even the Washington Times, although hardly much of a newspaper, would not put such crap down as the unsigned view of the editors.

Orin -- I enjoyed your disregard of due process there on Padilla and just assumed that accusations against him are true. You obviously learned nothing about the last few years -- in fact, the last, like, forever. The government is wrong, dead wrong, a lot. You should not just assume the claims against Padilla are true because John Aschroft said they were true. I am sure you, as did I, assumed the claims of WMD's in Iraq were true. How'd that turn out?
1.11.2008 12:01am
jukeboxgrad (mail):
hoosier: "Has Heritage moved to the South or Midwest, then? Maybe to Utah?"

Oh come one, you know better. No, they don't live there, just like Dubya doesn't live there. But the folks who live there (red states) are the target audience.

"As to the kids and the maps"

I thought the connection was obvious enough. A lot of people are painfully ignorant, and will drink whatever Kool-Aid Rush and Sean are serving. If someone is too ignorant to find Iraq on a map, I think the likelihood is that they are suspectible to seeing "24" as some kind of authentic reflection of reality.
1.11.2008 12:05am
CrazyTrain (mail):
Please expain again the application of the treaty to non-signatories....

You clearly have no idea what you are talking about. The US has signed many, many treaties where we have taken on affirmative obligations to non-signatories. E.g. the Convention Against Torture. Sometimes, we do not allow individuals to sue under the treaties, but they are still the law. Treaties are the supreme law of the land per the Constitution.
1.11.2008 12:06am
jukeboxgrad (mail):
In much the same way that I'm suspectible to typing poorly.
1.11.2008 12:08am
Randy R. (mail):
Duncan: "We established that an effective way to deal with death cults is to kill them until they get tired of dying. The Aztecs, Incas, Japs, and Nazis aren't bothering us much any more, are they. And it turned out you didn't have to kill that large a percentage of the population to achieve the desired effect. "

Timothy McVeigh was labeled a terrorist, and we know he didn't act alone. So I guess according to you, the gov't should just go around killing some US citizens 'to achieve the desired effect' of detering his buddies?

Speaking of McVeigh, why is it that none of the people so gung-ho on torture ever argued that McVeigh should be tortured to find out who else was working with him, and whether they planned more attacks? Isn't there the same rationale, that we must save lives?

But you have to hand it to Janet Reno. After the Oklahoma City bombing, there were no more bombings on American soil. So her and Clinton did an excellent job of preventing any further terrorists attacks while they were still in office. And we never had any more Waco incidents, either. Gotta give them credit, right?
1.11.2008 12:10am
Daniel Chapman (mail):
Man if this whole thread is as fun as the first 20 or so comments, I'm glad I stopped reading...
1.11.2008 12:12am
lucklucky (mail):
"I am sure you, as did I, assumed the claims of WMD's in Iraq were true"

Well they were found in Iraq. Not in number and were not new like expected, they were from 1980's.
1.11.2008 2:26am
lucklucky (mail):
sorry; instead of "like expected" should be read "contrary to expected"
1.11.2008 2:27am
Ryan Waxx (mail):
> if terrorists are fighting a war, that means they are soldiers.

Um, no. It takes less than 30 seconds to demolish that... were the german spies captured by the U.S. considered soldiers simply by virtue of 'fighting a war'?

Try actually thinking instead of using sophomoric word games... I've heard it helps.
1.11.2008 3:31am
Brian K (mail):
Try actually thinking instead of using sophomoric word games... I've heard it helps.
it does...perhaps you should try it.

german spies were tried as criminals. the commenter i was responding to was making the claim that terrorists can't be tried as criminals so your analogy doesn't work.
1.11.2008 4:02am
jukeboxgrad (mail):
luck: "they were found"

I think it's a good idea to recall just how large the gap was, between what we were supposed to find, and what we actually found.

Bush claimed we would find this:

500 tons of mustard gas and nerve gas, 25,000 liters of anthrax, 38,000 liters of botulinum toxin, 29,984 prohibited munitions capable of delivering chemical agents, several dozen Scud missiles, gas centrifuges to enrich uranium, 18 mobile biological warfare factories, long-range unmanned aerial vehicles to dispense anthrax


All the claims listed above, including all the numbers cited, came out of either Bush's mouth or Powell's mouth, or possibly both. Very detailed further analysis is here and here.

It's quite surprising that we haven't found that stuff, since Rumsfeld said he knew where it was:

We know where they are. They're in the area around Tikrit and Baghdad and east, west, south and north somewhat.


Of course the lovely thing about Rumsfeld is that he later told a blatant lie and claimed he never said that.

Here's what we found: some old, forgotten shells that were degraded and ineffective.
1.11.2008 7:58am
Anderson (mail):
We know where they are. They're in the area around Tikrit and Baghdad and east, west, south and north somewhat.

That was the funniest thing Rumsfeld ever said ... covers the entire damn country, doesn't it?
1.11.2008 9:10am
Ken Arromdee:
Re "Al Qaeda isn't a government": On 9/10 the de-facto government of Afghanistan was the Taliban, which controlled 90% of the country. While al Qaeda wasn't a separate government or separate country, it was part of the Taliban military structure and it is difficult to distinguish Taliban from al Qaeda forces.

The Taliban wasn't a government either. A "de-facto government" isn't a government; if the Mafia took over a country, that wouldn't turn Mafia hitmen into innocent soldiers just doing their job.
1.11.2008 9:45am
Howard Gilbert (mail):
The US has a long history of not recognizing governments in control of countries. We didn't recognize the USSR until 1933. For three decades we pretended that the Nationalists on Formosa were the government of China. During WWII we pretended that de Gaulle in Britain represented France. Of course, the British didn't fully recognize our own government until after the War of 1812. However, failure of the State Department to recognize a government in control of a country should not prevent us from treating captured soldiers according to the rules of war, as we did in Archangel with the Russians, in Korea with the Chinese, and in North Africa with the Vichy French. Similarly, we expect other countries to treat captured Americans according to the laws of war if they fought under the laws of war. Remember the Alamo, the Flying Tigers when they were part of the Chinese army, and the Continental Army.

A corps of 18,000 light infantry soldiers part of a larger army of 60,000 is not the Mafia, nor is that the official US position. When any US official begins to justify our claim that al Qaeda is not entitled to formal military status, they typically begin by quoting statements by Bin Laden that al Qaeda formally rejects international law and the Western laws of war. That is, the US position is not so much that the enemy is not a real government of a real country, but rather that they had formally rejected Hague and Geneva and therefore were not entitled to status under those agreements. However, the real legal issues here have not be seriously and intelligently discussed. People, including some Appeals Court judges, just make off the cuff comments and assume that their opinion is right without any legal or historical analysis.
1.11.2008 10:30am
Eli Rabett (www):
Well, it looks like we have gone beyond defining degeneracy down to parsing degeneracy down. Who ever thought that grammar would be the best support for torture.
1.11.2008 11:32am
Waldensian (mail):

Do you really think there's a good case that John Yoo is more evil than Jose Padilla? If I recall correctly, Padilla is believed to have entered the United States to set off a "dirty nuke" bomb in a United States city. (I realize that criminal charges against him didn't allege that, but that of course doesn't mean he didn't do it.)

Orin, please tell us this post was a joke, or you had been drinking, or... well, what is the excuse, exactly?
1.11.2008 11:39am
Q the Enchanter (mail) (www):
"Perhaps if Mr. Yoo had decided to pursue a life of terrorism, he too could be represented by his alma mater."

If there were justice, Yoo would need said representation -- in disbarment proceedings.
1.11.2008 11:54am
Torquemada (mail):
Eli Rabett, Anderson, etc.: what was wrong with the memo? I have it in front of me and I want to follow along this cite-free moral posing. (I assume it was the August 1, 2002 memo signed by Bybee.)
1.11.2008 12:01pm
Bob from Ohio (mail):
Torquemada. Great name de blog for this post!

Thank you for reminding me of something.

Judge Jay S. Bybee of the Ninth Circuit Court of Appeals signed 2 of the 3 memos. Why was he not named in the lawsuit by Yale also? If Yoo is "evil" and the cause of Padilla's alleged torture, is not Bybee just as resonsible? After all, if I sign a pleading and am sanctioned, should the associate down the hall be sanctioned instead because he wrote it in fact?

I think we know the answer. Yale knew that the case would be even more likely to be thrown out if a federal judge was named. So, they took the cowardly way out.
1.11.2008 12:36pm
Bob from Ohio (mail):
Now that I broke my ban on commenting on these "torture" posts, let me say that I find the de facto alliance bewteen terrorists and the moonbats at Yale quite amusing. Useful idiots 2.0.

I also find it anmusing that the "bedwetter" insult is used by the lefties here. Maybe it is true but at least the "bedwetters" are afraid of murderers. The "diaper wearers" here are afraid of lawyers!
1.11.2008 12:43pm
Anderson (mail):
what was wrong with the memo?

It's been exhaustively critiqued elsewhere, so if you're actually curious, you can find out easily enough.

The section on the alleged authority, as commander-in-chief, to disregard any statutes which in the President's opinion limit that function (which includes torture pursuant to national defense, thinks Yoo), is maybe the single most notorious example. You wouldn't think that the Supreme Court had ever addressed the question.

I would agree w/ Bob that Bybee should've been named, and the failure to name him just makes the suit look more like a stunt.
1.11.2008 12:46pm
jukeboxgrad (mail):
anderson: "That was the funniest thing Rumsfeld ever said ... covers the entire damn country, doesn't it?"

Indeed. And since he mentioned the four points of the compass, I'm surprised he didn't also mention up and down. After all, the stuff could be buried deep underground. Or it could be hidden in the clouds, somehow.

ken: "The Taliban wasn't a government either"

Three countries recognized the Taliban as the legitimate government of Afghanistan. Those three countries are Saudi Arabia, Pakistan, and UAE. All pals of Dubya. Go figure.
1.11.2008 12:51pm
J. F. Thomas (mail):
And actually Pakistan was largely responsible for the Taliban's rise to power. But let's not mention that.
1.11.2008 12:55pm
jukeboxgrad (mail):
bob: "The 'diaper wearers' here are afraid of lawyers!"

Guilty as charged, when the lawyers work for the government, and are paving the way for abuse of power. I think our Founders were also afraid of government abuse of power, so I think I'm in good company when I admit the same fear.
1.11.2008 1:19pm
MLS (www):
Torquemada

Let me try to respond to your question before the inevitable torrent of invective ensues. First, it seems to me that there was quite a bit wrong with the 8-1-02 memo (more commonly referred to as the Bybee memo or the Torture Memo). I do not hold this view as a matter of quasi-religious principle (as do Eli and his ilk), nor have I studied the issue in detail myself. Nonetheless, what I have heard and read inclines me to the view that the memo was seriously inadequate in a number of respects. Kathleen Clark has a paper on the subject which lays out these problems in some detail. http://www.fr.com/jjs/Oct26-2006-02.pdf

Second, the fact that OLC withdrew the memo and replaced it with another memo written by Dan Levin at the end of 2004 also suggests that there were aspects of the original memo that were hard to defend. Of course, this can be explained by the political reaction to the original memo, as opposed to its analytical infirmities, but it seems pretty clear there were a number of people within OLC and DOJ who did not believe that the original memo was legally correct.

Does this necessarily mean, for example, that waterboarding is illegal, or that whatever was done to Padilla violated the law? No, because one can object to the legal analysis of the Bybee memo but still agree with its basic conclusions (as the later Levin memo did). Conversely, one could believe that the Bybee (or Levin) memo sets forth a plausible legal position and still think that it represents a catastrophic mistake on moral and policy grounds.

These nuances, however, are lost on Eli and friends, who do not admit the possibilty of any good faith disagreements from their "moral posing," as you put it, on this issue.
1.11.2008 1:22pm
Goober (mail):
ejo:

exactly-these lawyers at Yale are of a mindset with that disgrace to the profession. somehow, we are supposed to believe they are driven by their wonderful concern for human rights as opposed to their hatred for the United States. why are we required to make the leap of faith and believe it is the former and not the latter. if, between 1942 and 1944, you devoted your life to the representation of Nazis....


I think this is where my side won the conversation. One point for the America-hating Nazi-sympathizers!
1.11.2008 1:25pm
Anderson (mail):
Thanks for providing the Clark paper, MLS. I would draw attention to this part:

The Bybee Memorandum purported to provide objective legal advice to government decision makers. Nevertheless, its assertions about the state of the law are so inaccurate that they seem to be arguments about what the authors (or the intended recipients) wanted the law to be rather than assessments of what the law actually is.

That seems pertinent to the question of Yoo and Bybee's intent and responsibility.
1.11.2008 1:57pm
ejo:
well, I think our enemies are of a like mind and are more fanatical than the Nazis. plus they want nukes. that, of course, didn't stop Lynne Stewart from allying herself with them. doesn't appear to stop the yalies either. if you were house counsel for the national socialist party in the 1930's, I can't imagine I would have you very high on my list of people to admire. somehow, these yalies are to be admired-can't think of one reason why.
1.11.2008 3:10pm
Anderson (mail):
Ejo, kindly relate to me in what sense the "Yalies" are "allying" themselves with Padilla by seeking the relief delineated in their complaint? ... which, of course, you have read.

Is it the one dollar for Padilla that's got you all concerned?
1.11.2008 3:18pm
ejo:
uh, they represent him-they have a client. do you think lawyers just get to randomly sue people without a client? or, do you think the lawsuit is brought without his knowledge or support? that would be an interesting ethical case to take up against their licenses.
1.11.2008 3:22pm
Anderson (mail):
Oh, I see, you're making a much less _________ point than I'd guessed.

Try to understand this: Padilla can be guilty of terrorism, a bad person, and yet still have a valid legal claim on his own behalf. I don't think anyone's lawyer is his "ally," in any meaningful sense of the word. But in any event, representing Padilla on his valid legal claim would not mean endorsing or advancing his terrorist goals, his other bad endeavors, etc., etc.

I don't see why this is hard for you to understand. It's not some peculiar legal concept, even. I have very little respect for your comments here (the feeling is mutual, I'm sure), but I would criticize the VC if they banned you from commenting; that would not make me your "ally," even if you hired me as your attorney to sue the VC (which I would advise against doing, btw, b/c you would lose).
1.11.2008 3:36pm
Morat20 (mail):
Are you sane? The reason we have been lucky for 6 years is because the US Military is giving their lives to kill and capture these evil doers overseas. The bad people didn't decide to be our friends after 9/11, they are getting dead or locked up.

Also, this rock protects you against tigers. My proof? I have NOT been attacked by a single tiger since I got the rock.

And I note, for further proof --- there have been tiger attacks in America during that timeframe.

Would you like to buy a rock?
1.11.2008 3:50pm
holdfast (mail):
"If terrorists are fighting a war, that means they are soldiers. if they are soldiers, then all the treaties, conventions and laws that apply to soldiers also apply to them and when they are captured they are POWs. and you can't legally torture a POW."

Is it not possible that there is some category other than criminal or soldier? I really don't think that Al Queada fits into either. A criminal is generally a member of a society who breaks the law for his own benefits (sick gratification and profit being the two most common reasons). A soldier generally works for a government whcih can be held accountable for his actions - either through international sanctions if they care about that sort of thing, or by bombing their cities if they don't. A rebel or a resistance fighter might operate much as a terrorist, except he has the specific goal of evicting an occupying force from his land - and if he conducts his operations in accordance with the laws of war, he will rightly be protected by the Geneva Conventions. On September 11, 2001 , the United States did not occupy Afghanistan - yet 19 hijackers came to the US to conduct attacks, with the larger aim of destroying the US system of government. Those are not the goals of a simple criminal - yet they are not soldiers either, since there is no state to be held accountable for their actions (and even if they were soldiers, they could still be shot as spies).

The legal analysis that has been forced on us by the Transnational Progressives (Tanzis) has given them all the options and left us with very few, and I have to assume that the Tranzis consider that a feature not a bug.
1.11.2008 4:07pm
ejo:
well, if you had been attacked multiple times by the tiger and still had tigers wandering around that looked hungry, that rock might be worth something. I doubt you live in a tiger infested jungle, however. this makes the point you are trying to make so much nonsense. as to the choice of client, the WWII nazi might have needed a lawyer and may have had a case. I am sure the National Socialist Party needed counsel as well.
1.11.2008 4:20pm
jukeboxgrad (mail):
holdfast: "On September 11, 2001 , the United States did not occupy Afghanistan - yet 19 hijackers came to the US to conduct attacks"

Most of them were Saudis. We had troops in Saudi Arabia, and I think I remember OBL saying he was upset about that.

Here's something that is relatively unnoticed and unremembered: Bush decided to appease OBL and withdraw from Saudi Arabia. Pretty quickly and pretty quietly. Hmm.

ejo: "that rock might be worth something"

Only if you were paranoid and irrational. A good description of the GOP.
1.11.2008 4:29pm
Bob from Ohio (mail):

But in any event, representing Padilla on his valid legal claim would not mean endorsing or advancing his terrorist goals, his other bad endeavors


Endorsing? Probably not. I doubt even the moonbats at Yale like to kill Americans. Well, maybe Republicans.

Advancing? Certainly. That is the effect. You can wrap it in the Constitution or the lawyer's duty to the truth etc. but the net effect of a victory for Padila is a terrorist victory.
1.11.2008 4:37pm
ejo:
paranoid and irrational-does that mean that there really aren't bad guys out there who want to kill us? or are we back to the bedwetter bleating again? it sure is irrational to believe that we have enemies that want to kill us and undoubtedly paranoid to try to stop them.
1.11.2008 4:47pm
Mark Field (mail):

Is it not possible that there is some category other than criminal or soldier?


Depends on what your purpose is. If you want to detain someone, then yes. GC Common Article 3 provides standards for the treatment of such persons. But if you want to punish someone, then there is no other category than soldier or criminal.

Note, also, that torture and abuse of detainees is prohibited for ALL categories.


The legal analysis that has been forced on us by the Transnational Progressives (Tanzis) has given them all the options and left us with very few, and I have to assume that the Tranzis consider that a feature not a bug.


The rules of international law, including laws relating to captured prisoners, have been developed over a very long period of time (hundreds of years at the least). Among the principal supporters of such law were George Washington and Abraham Lincoln. The most recent amendments to the GC are over 50 years old. To the extent your comment implies some recent change in the law, or by some nefarious but undefined group, it's absurd.
1.11.2008 4:49pm
Brian K (mail):
A criminal is generally a member of a society who breaks the law for his own benefits (sick gratification and profit being the two most common reasons).
this accurately describes the terrorists who have attacked us. they broke the law in a manner that benefited them.

A rebel or a resistance fighter might operate much as a terrorist, except he has the specific goal of evicting an occupying force from his land
so the "terrorists" in iraq that attack US troops are rebel/resistance fighters?

On September 11, 2001 , the United States did not occupy Afghanistan - yet 19 hijackers came to the US to conduct attacks, with the larger aim of destroying the US system of government. Those are not the goals of a simple criminal
sure it is. is treason not a crime? what do you classify john wilkes booth as? what do you consider people who release highly classified government information since they can't be criminals by your definition?

they could still be shot as spies)
i never said they couldn't be. but spies were tried in civilian/military courts as criminal before punishment.

The legal analysis that has been forced on us by the Transnational Progressives (Tanzis) has given them all the options and left us with very few, and I have to assume that the Tranzis consider that a feature not a bug.
HAHAHAHA
1.11.2008 5:00pm
jukeboxgrad (mail):
ejo: "does that mean that there really aren't bad guys out there who want to kill us?"

There have always been "bad guys out there who want to kill us." It's always been that way, and will always be that way. Every nation has enemies. Especially nations that are rich and powerful.

"it sure is irrational to believe that we have enemies that want to kill us and undoubtedly paranoid to try to stop them"

It is indeed irrational to try to stop them using methods that make the problem worse.
1.11.2008 5:03pm
jukeboxgrad (mail):
brian: "so the 'terrorists' in iraq that attack US troops are rebel/resistance fighters?"

Most Iraqis support attacks against us (pdf):

Support for attacks against US-led forces has increased sharply to 61 percent (27% strongly, 34% somewhat). This represents a 14-point increase from January 2006, when only 47 percent of Iraqis supported attacks.


Does that mean most Iraqis are terrorists, or terrorist-supporters?

Here's another riddle for you. When Maliki led the Dawa party in suicide attacks against Americans, were they acting as terrorists, or as rebel/resistance fighters?
1.11.2008 5:22pm
jukeboxgrad (mail):
brian: "what do you consider people who release highly classified government information"

You mean like the identities of CIA employees?
1.11.2008 5:26pm
Morat20 (mail):
well, if you had been attacked multiple times by the tiger and still had tigers wandering around that looked hungry, that rock might be worth something. I doubt you live in a tiger infested jungle, however. this makes the point you are trying to make so much nonsense.

There have been several tiger attacks in America over the last several years. One victim was a rather famous entertainer, mauled right on stage.

Yet I have not been attacked. I also have a tiger protecting rock. Ergo, my tiger protecting rock is why I'm safe and poor Roy has permanent brain damage. I bet HE wishes he had my rock.

I fail to see how this reasoning is any different than "We invaded Iraq, and there hasn't been another terrorist attack since!".
1.11.2008 5:31pm
Brian K (mail):
Jukeboxgrad,

Did the context of my comments not make clear how I would answer the questions I posed? Let me know and I'll gladly clarify.

Does that mean most Iraqis are terrorists, or terrorist-supporters?
Neither, since we've already established that the "terrorists" are resistance fighters by holdfast's definition. Even if you consider them terrorists, it still does not make most iraqi's terrorists or terrorist supporters. if you want to call what we're doing in iraq a "war" don't be surprised when the population of the country we invaded is not sympathetic to us. This was one of the many mistakes Bush made in his planning of the war.

You mean like the identities of CIA employees?
Yes. that was a criminal action. The only exception to the criminality of the release of classified info is when the classification is being used to cover up government wrongdoing and/or illegal actions. In that case, the leaker should be protected by strong whistleblower laws.
1.11.2008 6:15pm
Brian K (mail):
When Maliki led the Dawa party in suicide attacks against Americans, were they acting as terrorists, or as rebel/resistance fighters?
I don't know. I am not familiar with the group or their actions and neither wikipedia nor a quick google search came up with information on their attacks on americans.
1.11.2008 6:21pm
keypusher (mail):
The WSJ quotes from the complaint:

"Defendant Yoo subjected Mr. Padilla to illegal conditions of confinement and treatment that shocks the conscience in violation of Mr. Padilla's Fifth Amendment Rights to procedural and substantive due process."

and further states

the suit asks for only $1 in damages, plus legal fees. Instead, the suit seeks "a judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States."

Makes no sense to me.
1.11.2008 7:03pm
Fury:
"Three countries recognized the Taliban as the legitimate government of Afghanistan. Those three countries are Saudi Arabia, Pakistan, and UAE. All pals of Dubya. Go figure."

I'm trying to understand the connection between the Pakistan recognizing the Taliban in the mid 1980's and President Bush.
1.11.2008 7:15pm
jukeboxgrad (mail):
Brian, I owe you an apology, because I misinterpreted what you were saying. My mistake.

When I have time later, I might respond more fully.
1.11.2008 7:24pm
Brian K (mail):
Jukeboxgrad,

no apology necessary...it's a risk i take when i make that sort of response.
1.11.2008 7:33pm
Eli Rabett (www):
Please let me know why torturing is not a moral failure but imposing an income tax is.
1.11.2008 8:22pm
Howard Gilbert (mail):
"19 hijackers came to the US to conduct attacks, with the larger aim of destroying the US system of government". Clearly the attack on 9/11 had no effect on US military preparedness, economic strength, or governmental effectiveness. Nobody could have pulled off something that effective and yet been completely clueless about its results. The real question people should have been asking is not about the 19 hijackers but rather about the 18,000 infantry soldiers al Qaeda had recruited, trained, and equipped in Afghanistan, the one country on earth that on 9/10 we would have assumed was immune from attack by its neighbors or anyone else. Why would al Qaeda put 99.9% of its manpower and money into something that had no obvious purpose?

Bin Laden was pissed off by US troops who came to the Middle East during the first Gulf War, but even he realized that nobody could defeat the US in Kuwait. He had been in Afghanistan when an army of religiously motivated volunteers defeated the armoured divisions of the USSR superpower. He believed that if he went back to the same country and raised a new army of Mujahideen, then he could defeat the army of the last infidel superpower. All he needed was to force the US to invade Afghanistan. That's what the "planes operation" and "apartments operation" and all the other special operations were about.

While nothing Bin Laden could do would cause America to surrender or damage our government, it was entirely reasonable to assume that if he hurt us enough we would invade Afghanistan. After all, that is exactly what we did. What he did not expect was that we would not be stupid enough to stumble into the mountains with long lines of tanks along roads that could be easily mined. He did not realize we would send Special Forces that were even faster and better hidden than his Mujahideen. He did not know that air power and precision bombs would kill one third of his army and force the rest to run for their lives.

Bin Laden made the classic military blunder. He put all his money, planning, training, and manpower into re-fighting the last war. He was dumb, but at least you can follow his incorrect reasoning. He is not a comic book bad guy who did bad things because he is insane or evil. He had a plan that made a kind of sense but was just wrong.

Which brings us back to Padilla's unit and the "apartments operation" or KSM and his crew with the "planes operation". They were not terrorists who blow stuff up to kill a lot of people just to kill people. I know people find it convenient to believe that, but they were special operations units of hand picked soldiers detached from a larger army to go on a suicide mission for a military purpose. Yes, they killed a lot of people and made it look like terrorism, but as wrong headed as their theory may have been, their objective was to yank the tail of a sleeping lion to get it to wake up pissed. They wanted the US to react with military force against what they imagined were well prepared defenses in a supposedly impregnable country. It was a military strategy even if it was incompetent.

Which is not to say that 9/11 was valid combat by soldiers. They hijacked airplanes in violation of international law against airplane piracy. They became pirates, and therefore criminals, and eliminated any right they would have had to claim combatant status. They were pirates and war criminals, but not necessarily real terrorists. Padilla in turn was a spy and saboteur, a Traitor, and a would be war criminal. None of these classifications is incompatible with all these men being soldiers up to the point when their mission became unlawful.
1.11.2008 8:30pm
OrinKerr:
Waldensian writes:
Orin, please tell us this post was a joke, or you had been drinking, or... well, what is the excuse, exactly?


??? Waldensian, if you have an argument to make, then please make it. However, I don't know what you find objectionable in what I wrote, so it's hard for me to respond.
1.11.2008 9:10pm
holdfast (mail):


holdfast: "On September 11, 2001 , the United States did not occupy Afghanistan - yet 19 hijackers came to the US to conduct attacks"


Most of them were Saudis. We had troops in Saudi Arabia, and I think I remember OBL saying he was upset about that.


True - but they were dispatched from Afstan, where the nominal government shelterred, and was propped up by, Al Quaeda - though they deny that Al Queda was part of their Army.


Here's something that is relatively unnoticed and unremembered: Bush decided to appease OBL and withdraw from Saudi Arabia. Pretty quickly and pretty quietly. Hmm.


True - though I suppose the Saudis may have requested that move. Since we really were there at their invitation, we had to go. Still, kudos to Bush et al for keeping it mostly on the D L.



A criminal is generally a member of a society who breaks the law for his own benefits (sick gratification and profit being the two most common reasons).
this accurately describes the terrorists who have attacked us. they broke the law in a manner that benefited them.


No, they did it to further a larger ideology, rather than for personal gratification - there is a difference even if the line is a little blurry at times.


A rebel or a resistance fighter might operate much as a terrorist, except he has the specific goal of evicting an occupying force from his land
so the "terrorists" in iraq that attack US troops are rebel/resistance fighters?


If they were to conduct themselves in accordance with the laws of war - ie no deliberately targeting civillians, wearing some sort of identifying mark, not sheltering and attacking from behind civvies - then they could be treated as such. Which does not mean that I would not advocate fighting them, but I would basically accord them combatant status. Of course, now that Iraq has its own government, their wishes and policies would have to enter the analysis. Also, one would have to consider whether the individuals, despite their conduct in Iraq, were also members of AQ who had participated in other actions.



The rules of international law, including laws relating to captured prisoners, have been developed over a very long period of time (hundreds of years at the least). Among the principal supporters of such law were George Washington and Abraham Lincoln. The most recent amendments to the GC are over 50 years old. To the extent your comment implies some recent change in the law, or by some nefarious but undefined group, it's absurd.


Really, it seems like the left is always expanding these, including try to force the US to abide by protocols to the Geneva Conventions to which it has not signed up. Also, I seem to recall that the primary enforcement method for these rules was once resiporicty - and the fear of it. As bad as the Nazis were, they were generally decent to captured Allied soldiers (or at least not wildly evil to them - see the Japanese) - and we generally reciprocated. Al Quaeda tends to execute their prisoners with rusty knives. Not saying we should do that too (they probably deserve it, but I don't want us to become the people that would casually do such a thing) but it makes we worry a bit less about the infliction of harsh interrogation methods which are used against US personnel everyday in SERE school (Sleep Dep, Stress Positions and sometimes Waterboarding), which I do not consider to really be torture - hell, the first two are basically a staple of military basic training.
1.11.2008 9:11pm
MarkField (mail):

Really, it seems like the left is always expanding these, including try to force the US to abide by protocols to the Geneva Conventions to which it has not signed up.


You have no idea what you're talking about. I already posted the quote in which the Supreme Court confirmed that GC Common Article 3 (which we DID sign) applies to the detainees.


harsh interrogation methods which are used against US personnel everyday in SERE school (Sleep Dep, Stress Positions and sometimes Waterboarding), which I do not consider to really be torture - hell, the first two are basically a staple of military basic training.


Further confirmation that you're clueless. We also expose our troops to poison gas in order to make sure they react properly if it's used against them. Does that mean our enemies are justified in using it? After all, if waterboarding, etc. isn't torture, I guess you have no objection if it's done to our captured troops. Must be nice for you to put them at risk like that while they're keeping you safe and sound in your Depends.
1.11.2008 10:13pm
Brian K (mail):
No, they did it to further a larger ideology, rather than for personal gratification
the former leads to the latter. or do you think they would blow themselves up to advance an ideology that they don't want to advanced? The difference you are attempting to draw is extremely arbitrary.

It's the same as stealing money to buy drugs. The drugs gives them the "personal gratification" not the money. Would you not call such a person a criminal? Is a drug dealer selling drugs to make money (i.e. for personal gratification)? or is he selling drugs because he thinks drugs should legal (i.e. advance an ideology)? Is the first drug dealer a criminal while the second one is not?
1.11.2008 11:14pm
Brian K (mail):
here's another question: are evangelicals not happy when they convert a person to their faith?
1.11.2008 11:16pm
jukeboxgrad (mail):
brian: "I am not familiar with the group"

I raised the subject of Maliki and the Dawa party, for reasons that probably don't make a lot of sense (because I think I misunderstood something you said). Anyway, for the sake of completeness I'll offer some information about them, even though it's kind of off-topic. The point is that Maliki has history as a terrorist.

NRO and Andy McCarthy have covered this. Here's what they said about Maliki:

Maliki spent his exile-from-Saddam years in Syria as a political officer in the Dawa party which developed close ties with Hezbollah and Iran


NY Post, Benador Associates and Amir Taheri also have covered this. Here's what they said about Maliki:

[during his 20-year sojourn in Iran] he emerged as the leader of the party's most radical wing and the founder of its military branch, Jihadieh (The Holy Warriors). This was created by the Islamic Revolutionary Guard as one of several Iraqi Shiite militias Iran used in its long war against Saddam's Iraq


Some other details here.
1.12.2008 1:08am
jukeboxgrad (mail):
fury: "I'm trying to understand the connection between the Pakistan recognizing the Taliban in the mid 1980's and President Bush."

It wasn't just something that happened "in the mid 1980's." Pakistan, Saudi Arabia and UAE all recognized the Taliban up until 9/11. Then SA and UAE cut ties. Pakistan did not. And what's the connection with Bush? He has made a number of statements like this:

You're either with us or against us in the fight against terror


That seems hollow when we notice who his pals are.
1.12.2008 1:08am
jukeboxgrad (mail):
holdfast: "(Sleep Dep, Stress Positions and sometimes Waterboarding), which I do not consider to really be torture"

Bush's State Dept has declared that sleep dep is torture. Likewise for submersion of the head in water. IOKIYAR.
1.12.2008 1:09am
Fury:
jukeboxgrad, you wrote:

"Three countries recognized the Taliban as the legitimate government of Afghanistan. Those three countries are Saudi Arabia, Pakistan, and UAE. All pals of Dubya. Go figure."

to which I responded:

I'm trying to understand the connection between the Pakistan recognizing the Taliban in the mid 1980's and President Bush.

——————————

First, the mid 1980's should be the mid 1990's. Sorry about that.

Second, I concluded from your original statement that President Bush was somehow involved in Pakistan recognizing the Taliban. If that was not your point, my apologies.

Third, there's several ways to cut ties. Pakistan closed the Taliban embassy in Islamibad - see here. That's seem a pretty reasonable way to cut diplomatic ties.
1.12.2008 1:55pm
jukeboxgrad (mail):
fury: "the mid 1980's should be the mid 1990's. Sorry about that."

I probably could have guessed that's what you meant. I'm sorry I didn't.

"I concluded from your original statement that President Bush was somehow involved in Pakistan recognizing the Taliban."

Close, but not exactly. My point is that Bush doesn't mind being pals with people who don't mind being pals with terrorists. This is at odds with a lot of his rhetoric.

"Pakistan closed the Taliban embassy in Islamibad"

I see that as a token move. Musharraf was easy on the Taliban before then, and he is now easy on the Taliban again. We've been arming and financing him while he provides OBL with a safe haven the size of New Jersey.
1.12.2008 6:49pm