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It is plausibly thought that Guantanamo Bay has become an albatross and for symbolic reasons must be closed.

As discussions continue, the following facts should be kept in mind.

1. If some detainees are released or tried in civilian courts, many others will not be released because they are too dangerous, and will not receive regular civilian trials because of security issues. Many other such people—highly dangerous and identifiable if at all only with confidential intelligence methods—remain at large, including Osama bin Laden himself.

2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities—an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them.

3. The Obama administration will also not repudiate the proposition that the conflict with Al Qaeda and affiliates is a military conflict. It follows that the Obama administration will retain the right to detain members of Al Qaeda "for the duration of hostilities," whatever that means, especially those scooped up outside the United States in war zones like Afghanistan.

4. It will continue to be necessary to detain Al Qaeda suspects without trying them for substantial periods of time, even if ultimately everyone will be tried or released. In some cases, it will take a long time to renegotiate repatriation agreements with countries of origin; in other cases, no country will accept them; in still other cases, military authorities will want to hold them while evidence is accumulated, hostilities are contained, or interrogations take place.

5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid--namely, that dangerous people imported from far away will have to be released onto American territory.

6. The foreign detention camps are dangerous, unpleasant places because they are located in dangerous, unpleasant areas. So shutting Guantanamo Bay will almost certainly increase the hardships both for future detainees and for the soldiers who must guard them—-even if the Obama administration takes a softer line than the Bush administration and detains fewer people for less time, and tries a greater portion of them in civilian courts.

Hurrah for symbolism!

PLR:
Hurrah for symbolism!

One could also say, "Hurrah for the rule of law," for those who care about such things.
11.11.2008 2:49pm
wyswyg:
I guess I should post this here.

And invite PLR to comment on it.
11.11.2008 2:51pm
Smokey:
Many other such people... remain at large, including Osama bin Laden himself.
bin Laden's dead.
11.11.2008 2:54pm
Brian S:
Since civilian authority has been reconstituted in Iraq and Afghanistan, why are US forces detaining any persons at all?

Isn't military detention of spies and saboteurs in occupied territories only permitted if the military is actually administering the laws in those territories? Shouldn't the civilian authorities in those territories, whose sovereignty we stress, take charge of those prisoners?
11.11.2008 2:59pm
Robert Farrell (mail):
The legal right to hold prisoners of war indefinitely applies to prisoners of war. If you do not place someone in that categories, with all the rights thereof, you cannot hold them indefinitely.

If you regard someone as a war criminal, then you can put them on trial for that under the known rules. If you regard someone as a terrorist, you can put them on trial for the crimes they have committed, whether they are the Unabomber or an Islamic terrorist.

It is not constitutional or lawful to create a hybrid category with all the things you want -- interrogate, try, and punish like a criminal; imprison without due process, hold indefinitely, as if one were a prisoner of war.

The courts have already pushed back against the executive on this. Moving prisoners to American soil will remove one of the excuses used by the former administration to try and resist the limits imposed by the Constitution and upheld by the courts. Thus it will have practical, not just symbolic impact.
11.11.2008 2:59pm
Richard Aubrey (mail):
Gitmo was made into a gulag of unimaginable horror as a tactic against Bush.
The NYT has already reported that it's not so bad--this came on the eve of the election, of course--and the guys within are really dangerous.
So, Bush being gone, I foresee Gitmo becoming not so bad at all.
11.11.2008 3:04pm
darelf:
Robert, I think you missed the part where the consequences are simply that these prisoners will be kept in places where this isn't a problem. Nothing actually changes, except for the symbolism of it, and probably making things worse for those captured.
11.11.2008 3:06pm
ECJ:
I would venture that there is a major difference--more than just symbolic--between detention camps in the theater of operations (Iraq &Afghanistan), and a detention camp halfway around the world that the administration specifically chose because of its proximity to U.S. sovereign territory and presumed immunity from domestic law.
11.11.2008 3:14pm
wm13:
I don't get what PLR is saying. Why is holding detainees at temporary facilities in Afghanistan more in compliance with the rule of law than holding them at Guantanamo? Except in the trivial sense that the federal courts have not asserted that they have jurisdiction over prisoners held in temporary facilities in Afghanistan. But rule of law is usually considered to mean more or other than complying with court orders, so that, for example, a court decision which imposed criminal sanctions on an ex post facto basis, or which rendered a decision avowedly based on the social status of the parties, could be described as violating the rule of law.
11.11.2008 3:18pm
MarkField (mail):
This post calls to mind Robert Heinlein's comment that "Logic is a way of saying that anything which didn’t happen yesterday won’t happen tomorrow."
11.11.2008 3:19pm
DDG:
ECJ,

Yep -- one promotes raids, sabotage, escape, and riots. It also can be used to symbolically stir up dissent in the location of the prison. The other ... not so much.
11.11.2008 3:24pm
Bart (mail):
2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities—an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them.

I pray you are correct. However, the AP report indicates that the Obama advisors drafting his policy on this matter are treating this war completely as a civilian criminal justice matter. Detaining the enemy as prisoners of war was not one of the three reported options they are mulling. Indeed, the Obama option that appeared to apply to classic prisoners of war (enemy combatants or civilians who are not war criminals and are being held for the duration of hostilities) would return these al Qaeda to their home countries for probable release back to the battlefield.

Do you have any evidence that the Obama or his advisors are planning to keep captured al Qaeda as POWs?
11.11.2008 3:31pm
Thales (mail) (www):
Smokey, if you make that pronouncement with the certainty with which you also regularly claim (on this blog) there is no such thing as anthropogenic global warming and make absurd claims about President-elect Obama's citizenship and patriotism, I think people can use you as a reliable indicator of the opposite of fact.
11.11.2008 3:31pm
Richard Aubrey (mail):
If bin Laden were alive, he's missing out on some good PR opportunities.
If he's alive and missing out on some good PR opportunities, it's possibly that there's no way to hide the fact that he lives in a cave with a two bodyguards and a goat, and has no influence over anything, which is worse than being thought either dead or mysteriously someplace planning yet more mischief.
If he's working quietly behind the scenes, he's way behind the scenes because none of his minions are referring to him as being active.
It's possible our intel has him pegged as being active behind the scenes and isn't telling anybody.
But, man, what opportunities he's missing to taunt the US and encourage his followers.
11.11.2008 3:39pm
PDXLawyer (mail):
Robert Farrell wrote:

"The legal right to hold prisoners of war indefinitely applies to prisoners of war. If you do not place someone in that categories, with all the rights thereof, you cannot hold them indefinitely."

Is there any authority or reasoning for the proposition that, for example, a person detained as a spy is entitled to a trial at all, much less a speedy trial, under international law? Or, is there an argument that US domestic law applies to military operations in foreign countries?

I agree with Eric that closing Guantanamo is "merely" symbolic. But symbolism should not be too casually dismissed. Per Napoleon, the moral is the the material as three is to one.
11.11.2008 3:40pm
Dan Hamilton:
If they are in the US some lawyer will demand a bail hearing and some liberal federal judge will grant it. Then the "suspected" terriorist will be set free until his trial.

How much does anyone want to bet against this?

Liberals believe that these people are just misunderstood they really don't want to hurt us (Liberals) they just want to hurt those mean Repubs.
11.11.2008 3:40pm
Robert Farrell (mail):
This post calls to mind Robert Heinlein's comment that "Logic is a way of saying that anything which didn’t happen yesterday won’t happen tomorrow."

Good quote, although really that's a description of reason, not logic (as Hume's problem of induction shows.)
11.11.2008 3:42pm
Gilbert (mail):

2. ... If you can kill enemy soldiers, you certainly should be able to detain them


This is too simple. The conclusion can't follow solely from the premise. According to international law (if you believe in such things) you can't kill enemy soldiers if they have become prisoners. If you don't believe in such things, the only thing stopping the president from setting up honest-to-goodness death camps for prisoners of war is domestic law, which is is its own problem.
11.11.2008 3:45pm
Eli Rabett (www):
The foreign detention camps are dangerous, unpleasant places because there are no restraints on the people who are running them who abuse those who are detained. See brig, South Carolina. As David Baltimore recently wrote

In concluding this essay, I want to say something very difficult. I don't know if I speak for just myself or for many readers. Since 2001, I have lived a life of denial. I have denied responsibility for the actions of America. I have denied that President Bush speaks for and represents my country. I have held my breath, awaiting new inhabitants of Washington who will again be the moral, thoughtful, balanced people who are the true Americans.

But do I have that right of denial, the right to pretend that American actions are not about me? Mustn't I take some responsibility because our government is a creature of the democracy we cherish? Forced by the president, the Congress this year accepted a budget that does not meet the needs of America but there was no uprising by the people. We accepted the right of the president to starve our scientific enterprise: We can only complain, not change the result. Denial is wonderful. We tell ourselves that we travel as people, not as representatives of our country, when in fact we should travel with our head held low, doing penance for the horrors inflicted by our country at Abu Ghraib, at Guantanamo Bay, and in secret jails in eastern Europe. I am old enough to remember going to Europe in 1960 when we were so proud to be Americans, when we could still bask in the reflected glory of the gift of victory we gave the world in World War II. What a long time it has been.
11.11.2008 3:45pm
Brian S:
If they are in the US some lawyer will demand a bail hearing and some liberal federal judge will grant it. Then the "suspected" terriorist will be set free until his trial.

Of the more than 700 original detainees at Guantanamo, we've let about 500 go. We want to let more go, but can't find a way to return them to their home countries that is permissible under US and international law.

That means that by our own admission, around 80% of the time we sent someone to Guantanamo, we were dead wrong.

That failure rate doesn't look very good to me, and it implies that among the people we refuse to let go, there might be similar "mistakes". The purpose of due process is to bring "mistakes" of that kind to light.

When we already know that TPTB screwed up 80% of the time when making the decision to bring people to Guantanamo, it's not reasonable to ask me to just accept that our intelligence agencies will just "make the right decision" without judicial review. Sorry.

Maybe bail hearings would have sieved out some of the 500 guys we sent to Guantanamo wrongly. And made our national disgrace there a little less acute.
11.11.2008 3:46pm
Robert Farrell (mail):
Robert, I think you missed the part where the consequences are simply that these prisoners will be kept in places where this isn't a problem.

That's the OP's assumption, but it isn't grounded in the facts. The same news accounts that describe a plan to close Gitmo describe plans to move detainees to the US and try them here, whether in the criminal justice system or via a modified "third way" system of courts (which I think is a terrible idea, but attests to the new administration's intention to bring the detainees to US soil.
11.11.2008 3:46pm
ECJ:
DDG - Sure, both can be (and are) used to symbolically stir up dissent. My point was that detaining POWs in the theater of operations is a necessary incident of fighting a war. Shipping them to Cuba to be held indefinitely is not.
11.11.2008 3:47pm
Bob from Ohio (mail):
I always thought the fact that the CIA used to "authenticate" the tapes within about a 1/2 hour meant they were not really Bin Laden.

Can't both the left and right agree that the CIA has
never been right about anything, ever.

(BTW, when was the last Bin Laden tape? I remember the election tape 4 years ago but there must have been more recent ones. Seems strange that as video cameras get smaller and better, there are fewer tapes.)
11.11.2008 3:49pm
Robert Farrell (mail):
If they are in the US some lawyer will demand a bail hearing and some liberal federal judge will grant it. Then the "suspected" terriorist will be set free until his trial.

Just to review:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


If you are comfortable with the idea that the government can point a finger at you, call you a terrorist, and haul you off in the middle of the night to prison, without ever having to prove or even to disclose the charges against you, you may want to ask yourself why you like living in a democracy at all.
11.11.2008 3:50pm
Elliot123 (mail):
"It is not constitutional or lawful to create a hybrid category with all the things you want -- interrogate, try, and punish like a criminal; imprison without due process, hold indefinitely, as if one were a prisoner of war."

We can create anything we want. We created the US Constitution.
11.11.2008 4:02pm
Specast:
I was essentially going to write what Gilbert wrote: the proposition "If you can kill enemy soldiers, you certainly should be able to detain them" doesn't follow, either as a matter of law or as a matter of widely-held morality in this country. The mere fact that an enemy soldier could have been killed on the battlefield does not authorize the capturing country to inflict upon the soldier anything short of death.

John McCain was an enemy soldier to the N. Vietnamese and could have been killed in combat. Does that mean that his torture was legal and morally appropriate? Of course not. I would never equate him with the dirtbags fighting for Al Quaida, but these rules have to apply to all POWs/detainees. Our hypocracy in this regard is not lost on others around the world.

I think the Golden Rule is critical to keep in mind here. If it's okay for us to do to the Guantanamo detainees, it's okay for others to do to our soldiers in the current conflict and any conflict in the future -- and was okay in past conflicts as well.
11.11.2008 4:04pm
PLR:
[wyswyg]:I guess I should post this here. ... And invite PLR to comment on it.
My only comments would be that (a) I do not purport to hold forecasting powers equal to those of Eric, and (b) the WSJ article notes the existence of some hedging:
Advisers caution that few decisions will be made until the team gets a better picture of how the Bush administration actually goes about gathering intelligence, including covert programs, and there could be a greater shift after a full review.

The Obama team plans to review secret and public executive orders and recent Justice Department guidelines that eased restrictions on domestic intelligence collection. "They'll be looking at existing executive orders, then making sure from Jan. 20 on there's going to be appropriate executive-branch oversight of intelligence functions," Mr. Brennan said in an interview shortly before Election Day.
Another comment:
[wm13]:I don't get what PLR is saying. Why is holding detainees at temporary facilities in Afghanistan more in compliance with the rule of law than holding them at Guantanamo?
If you were only talking about battlefield captures, it wouldn't be. But Gitmo has been a long-term dumping ground for noncombatants like Boumediene, al Odah, the Uighurs and others, who are left in a legal vacuum for years on end. If they had been true battlefield captures, they would have been released from custody relatively quickly -- the military isn't interested in babysitting noncombatants.

Clearly the Bushies believed Gitmo to be a legal neverland beyond the reach of Article III judges and beyond the reach of any treaty the U.S. had signed. The legal community was not so credulous.
11.11.2008 4:08pm
ObeliskToucher:
I've always thought Fairbanks, AK would make a good site for a detention camp if Guantanamo is closed...
11.11.2008 4:12pm
q:

The mere fact that an enemy soldier could have been killed on the battlefield does not authorize the capturing country to inflict upon the soldier anything short of death.

detain != "inflict upon the soldier anything short of death"

It's certain that he can be detained. This statement doesn't mean anything else short of death is certain to be authorized.
11.11.2008 4:12pm
Moneyrunner43 (www):

If you are comfortable with the idea that the government can point a finger at you, call you a terrorist, and haul you off in the middle of the night to prison, without ever having to prove or even to disclose the charges against you, you may want to ask yourself why you like living in a democracy at all.

Are you wondering why – in Bush’s America - Robert Farrell is still running around free?
11.11.2008 4:13pm
Thomas_Holsinger:
Note that the usual suspects continue to purport that their fantasies are law, i.e., they insist on getting the Montana Militia Award in perpetuity. They'll never name a specific statute, or treaty clause, because they, like the Montana Milita, live in la-la land.
11.11.2008 4:16pm
phaedruscj:
Don't the amendments to the constitution apply to US citizens? Since when have we converted enemy combatants into US citizens?

As a soldier the solution is much more straight forward.

Take fewer prisoners. The enemy will still be eliminated and there will be fewer prisoners.

The greatest generation routinely eliminated troublesome germans without taking them prisoner. These incidents came long before Malmedy.
11.11.2008 4:21pm
Moneyrunner43 (www):

Gitmo has been a long-term dumping ground for noncombatants like Boumediene, al Odah, the Uighurs and others, who are left in a legal vacuum for years on end. If they had been true battlefield captures, they would have been released from custody relatively quickly -- the military isn't interested in babysitting noncombatants.


The Left can’t seem to get their heads around the fact that the war we are in is not like the Napoleonic wars or even like the Great wars of the 20th Century, with men in uniform shooting at each other from well defined lines. Perhaps it’s their unfamiliarity with warfare, their obsessive desire to see everything within a framework that fits their world view. They have an idea of war and, like a procrustean bed; they will make all future wars fit that matrix. The idea that non-combatants by day can turn into combatants at night seems totally alien to them. Here’s a thought experiment: what were the 9/11 hijackers; combatants or non-combatants? When did they become combatants? Defend your answer.
11.11.2008 4:27pm
Hey Skipper (mail) (www):

If you can kill enemy soldiers, you certainly should be able to detain them" doesn't follow, either as a matter of law or as a matter of widely-held morality in this country.

If I remember the Law of Armed Conflict correctly, no one fighting for Al Qaeda or any of its metastases qualifies as a soldier.

Which means they qualify for summary execution.
11.11.2008 4:30pm
John Moore (www):
Wait a moment... why is everyone arguing about POWs? Don't we care about the Geneva Conventions? By those conventions, the people we have in Guantanamo are either illegal combatants or alleged illegal combatants, not POWs.

By international law, we do have the right to kill illegal combatants. Witness the firing squad execution of German soldiers who wore American uniforms during the Battle of the Bulge (WW-II). Simply because they were not in the proper uniform, they were executed. They were not executed on the spot, but after they had been held. Furthermore, they weren't extended US Civilian Court protections, and were executed by the same part of government (military of the executive) that holds the Guantanamo detainees.

So please, why can't we just take them out and shoot them - The Greatest Generation did it under similar circumstances. Has the Constitution changed since then?

If we believe in the rule of law, we must also believe in the idea that violators of the law (in this case, our prisoners who violated the Geneva Convention), should be punished for doing so. Otherwise, the Geneva Convention simply hobbles the good while providing no incentive for others to behave well.

........................

Then we have the tired argument about "the Golden Rule." It's tired (tiring) because we have not faced an adversary who came even close to abiding by international law or in any other way treated our POWs reasonably since WW-II. Furthermore, again, these are not EPW's. By the Golden Rule, does anyone expect an American spy or un-uniformed special forces operator to be treated well by the Taliban? Get serious.

Then this gem:


If they had been true battlefield captures, they would have been released from custody relatively quickly -- the military isn't interested in babysitting noncombatants.


Need I explain the absurdity of that comment?
11.11.2008 4:32pm
Pete Guither (mail) (www):
What makes the war on terror a war? Does this mean that we can indefinitely hold without trial people suspected of being involved in the war on drugs?

Indefinitely holding an enemy combatant in a war with a country is much easier to do without the potential appearance of lawlessness. At least you have a nationality, and you're at war with that nationality. However, when you're at war with terror, then virtually ANYBODY can be named an enemy combatant. And if there is no finite, clear method of either confirming guilt or quickly releasing the innocent, then our country appears lawless, and we set an example to the rest of the world that encourages lawlessness.

This is more dangerous than letting the occasional terrorist slip through.
11.11.2008 4:33pm
TerrencePhilip:

5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid--namely, that dangerous people imported from far away will have to be released onto American territory.


This, along with #6, are what has made the Guantanamo crying-party seem so misguided. The overwrought cries of anguish about the evils of Guantanamo, and labeling it as a "legal black hole," seem custom-made to ensure the US will house these people in Afghanistan or Iraq, in places the news media will never even hear about-- and such arrangements appear legal under any legal theory I've seen.
11.11.2008 4:38pm
George Weiss (mail) (www):
missing the point as unusual with a post about detention.

question is not about legal rights to hold enemy combatants-legal or illegal.

question is, and always has been how do we know who is a combatant and who is innocent and who determines that, and through what process and in what time frame given the risks of both type 1 and type 2 errors.
11.11.2008 4:43pm
Happyshooter:
If you can kill enemy soldiers, you certainly should be able to detain them.

And it is clear under the law of land warfare that unlawful combatants can be shot out of hand following at most a hearing in front of a commissioned officer.

Most of our troubles have arisen because instead America held them. That gave the pro-terrorists a chance to suborn (willingly in most cases) federal judges to make truly odd rulings on the rights of these unlawful combatants -- and at the same time help their party by smearing Booosh.
11.11.2008 4:47pm
Der Hahn (mail):
Robert Farrell: If you are comfortable with the idea that the government can point a finger at you, call you a terrorist, and haul you off in the middle of the night to prison, without ever having to prove or even to disclose the charges against you, you may want to ask yourself why you like living in a democracy at all.

And it'll be much easier for the government to do this once the court system doing this isn't in the military but explictly civilian. (from the linked article : But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.)
11.11.2008 4:48pm
Sarcastro (www):
The Happyshooter corollary:

Every Federal Judge is a Democrat and has no integrity!
11.11.2008 4:52pm
Moneyrunner43 (www):

question is, and always has been how do we know who is a combatant and who is innocent and who determines that, and through what process and in what time frame given the risks of both type 1 and type 2 errors.

If you look back to the beginning of this thread, you will find the assertion by Brian S:

Of the more than 700 original detainees at Guantanamo, we've let about 500 go. We want to let more go, but can't find a way to return them to their home countries that is permissible under US and international law.

He means that, of course, as an accusation of the evil of the Bush administration. However, it seems that we have a mechanism that answers your question.
11.11.2008 4:52pm
Philistine (mail):

And it is clear under the law of land warfare that unlawful combatants can be shot out of hand following at most a hearing in front of a commissioned officer.



Ummm... no it's not. You've been watching too many war movies.

It's clear under the Geneva Conventions (both the 4th Convention and Common Article 3) that summary executions of illegal combatants are forbidden.
11.11.2008 4:59pm
Moneyrunner43 (www):

Every Federal Judge is a Democrat and has no integrity!

Better sarcastro:When we create a judge that person is re-born and endowed with superhuman wisdom and knowledge, making him the ultimate authority on all matter legal, moral, ethical and military. I sometimes wonder why we don’t simply dispense with elections and ballots when we have the Gods themselves robed in black.

I realize that I am posting blasphemy on a law-blog but the hubris of the legal profession is sometimes more than the stomach can bear.
11.11.2008 5:01pm
Sarcastro (www):
Moneyrunner43 whoa. Was that some kind of double-Sarcastro?
11.11.2008 5:04pm
Moneyrunner43 (www):

Was that some kind of double-Sarcastro?

Why no. The anwer to every problem on Volokh is either the defenestration of Bush or the impostion of a federal judge.

I thought you knew.
11.11.2008 5:12pm
PLR:
[Moneyrunner43]:The idea that non-combatants by day can turn into combatants at night seems totally alien to them. Here’s a thought experiment: what were the 9/11 hijackers; combatants or non-combatants? When did they become combatants? Defend your answer.

My post mentioned Boumediene, al Odah and the Uighurs. The Uighurs have already been adjudicated to be non-combatants. If you have evidence that Boumediene (or his co-appellants) and al Odah (or his co-appellants) were combatants at night, please elaborate.

As for the hijackers, had they been apprehended before the fact they would likely have been tried for conspiracy to commit acts of terrorism. If in lieu of such a trial they were shot by a military firing squad or dispatched to a black prison for, ahem, further processing, those would be outside of the rule of law.

If you believe those to be within the rule of law, again, please elaborate with appropriate citations. Thanks in advance.
11.11.2008 5:12pm
just me (mail):
Dumbest thing Obama can do? Close Gitmo and bring the detainees here for a trial in US courts or any court where they get bail or even the prospect of bail. I am also guessing that the various congress members from both sides of the aisle will be pulling a NIMBY on this one.

What will likely happen? Obama will find some other country to send the combatants, close Gitmo and I am willing to bet the other camps in theatre will continue to hold the various men (ad women) picked up on the battlefield or at least trying to kill our soldiers or those we are fighting with.

Gitmo is the symbol-and I am not real keen on how it was run, but I am also not seeing any real options, I do think the majority of American people will not be too keen on having any of them brought here though.
11.11.2008 5:17pm
TomO (mail):
I agree that Guantanamo Bay was a useful location for a prison. Unfortunately the excessive zeal for secrecy and complete executive control of the Bush administration has ruined it. The pro GITMO right has failed to recognize the changes in this war from previous wars that render a blind copying of WW II policies a serious mistake and moral wrong.
1. Most importantly we are detaining a large number of people who have plausible claims not to be enemy combatants, this is new. Many of them have been released, but President Bush claims the right to hold all non-americans without any review but his own. Given the serious risk of wrongful detention this arbitrary power is unacceptable.
2. The time factors are seriously different than previous conflicts. These are not detainees on a battlefield days after being captured, but people held thousands of miles away years later. There has been sufficient time and distance for the military to organize a case. Many of these prisoners were not captured on the battlefield by our troops, but, instead, were rounded up by bounty hunters for a substantial payment. Further, this isn't a war against a nation state which we could presumably make peace with or conquer - it is a war against a criminal group that most likely will not end for decades to come. The lack of prisoner exchanges or a forseeable end to hostilities creates a moral obligation to review detainee status to ensure they really are enemy combatants rather than impose a life sentence on an innocent person.
3. President Bush lost all credibility by repeatedly opposing the creation of any meaningful check on either his detention or interrogation powers. He argued for the power to detain American citizens accused of supporting al Qaeda without review. Further, he ordered the use of, inter alia, water boarding which is widely regarded to be a form of torture.
4. Finally, despite having the ability to detain until the end of hostilities, he sought to create a military tribunal with very few due process checks for the defendants system, including harsh limits on the accused to see the evidence against them and the admissibility of evidence obtained through torture, to try the detainees for war crimes and to execute them.
I do not dispute the right to detain enemy combatants until the end of hostilities, but I do believe that there must be meaningful review of that status within a reasonable time. The current CSRT system is woefully lacking in that regard. I would have preferred to keep them in Guantanamo, an isolated and secure military base , but President Bush's legal black hole arguments have ensured that if we keep detainees there it will be seen as an attempt to remove them from the protection of law. Thus, unfortunately, we will probably have to move them to someplace like Supermax. We should be able to interrogate enemy combatants (and alleged enemy combatants) using more coercive techniques than would be allowed against the troops of a Geneva signatory nation. Nonetheless, water boarding is torture and is impermissible.
I would like to try and execute the war criminals responsible for the murder of my fellow citizens and the innocent people of many other friendly nations. However, that is not an urgent goal, and can be delayed until the evidence can be presented without risking intelligence sources and methods. Any such trials must be just, and should, therefore, provide similar protections to a court martial. The Bush tribunal system was woefully behind in this regard.
11.11.2008 5:21pm
George Weiss (mail) (www):
@Moneyrunner43


He means that, of course, as an accusation of the evil of the Bush administration. However, it seems that we have a mechanism that answers your question.


actually we have several processes and ideas an no consensus on which one is better to use as a matter of policy or whether or not the law (the constitution is law) provides we must use one process or another.

my point is nobody is against detaining terrorists. everyone is against detaining innocents. the problem is distinguishing between the two. executive arguments (whether they come from bush or obama) that claim (correctly) power to detain military combatants do not address the issue.
11.11.2008 5:24pm
Robert Farrell (mail):
Don't the amendments to the constitution apply to US citizens?

No, not unless the passage says "citizen." If the constitution says "the people" or "person" then that's who it applies to.
11.11.2008 5:33pm
Randy R. (mail):
Moneyrunner: "The Left can’t seem to get their heads around the fact that the war we are in is not like the Napoleonic wars or even like the Great wars of the 20th Century, with men in uniform shooting at each other from well defined lines."

You're right! We should give up every liberty in order to maintain security, just like in that V for Vendetta movie. I also think the Bill of Rights is a quaint relic from the 18th century, and we should get rid of it. Including the Second Amendment.
11.11.2008 5:34pm
Moneyrunner43 (www):

As for the hijackers, had they been apprehended before the fact they would likely have been tried for conspiracy to commit acts of terrorism.

Just so that I'm sure of what you are saying: the hijackers were not combatants. Is that right?
11.11.2008 5:42pm
Robert Farrell (mail):
And it'll be much easier for the government to [imprison people without due process] once the court system doing this isn't in the military but explictly civilian.

Explictly civilian courts don't have that kind of power, and they don't need to have it given to them. An arbitrary system of detentions is not a safe thing because it is in the hands of the military; if you had to give a one-sentence summary of the most common way a democracy dies it would have to be "And then the military came in temporarily to restore order."
11.11.2008 5:43pm
just me (mail):
but President Bush's legal black hole arguments have ensured that if we keep detainees there it will be seen as an attempt to remove them from the protection of law. Thus, unfortunately, we will probably have to move them to someplace like Supermax.

Except you can't do this. To go to Supermax they would have to be convicted in a Federal court, if the Federal courts are the place of trial, they would have to be held in a Federal jail or possible a military Brig (not sure how the various military prisons are separated with regards to pre, post trial and felonies).

They would have a right to bail. There isn't a congressman or state governor that is going to volunteer for the detainees to come to their state and land in any of the prison's they have that might be suitable, and they sure as heck don't want them to be bailed out and freed into their communities.

The reality is that there isn't really anywhere in the US equipped to deal with these detainees, and I don't think the Federal courts are the place to try them, if they are to have trials. I think a military tribunal/court is the best place, which actually means it makes more sense anyway to do them in theatre.
11.11.2008 5:44pm
martinned (mail) (www):
@Moneyrunner43: That sounds about right: hijackers are to the war on terror what your average drug mule is to the war on drugs, only messier.
11.11.2008 5:44pm
Robert Farrell (mail):
Just so that I'm sure of what you are saying: the hijackers were not combatants. Is that right?

No, they weren't. Neither is a child rapist or a serial killer. "Combatant" does not mean "very very bad guy." The hijackers were terrorists, which until it became legally convenient to pretend otherwise, were traditionally regarded as seperate and inferior to enemy combatants. (Was the Unibomber a combatant? Is Tre Arrow?)
11.11.2008 5:47pm
martinned (mail) (www):
I realise that there is no such thing in US law as parliamentary sovereignity, but why not take a leaf out of the UK's book? They've been fighting a war on terror for 40 years, and as far as I can tell they've struck a pretty reasonable bargain between security and liberty. In some cases, people can be detained, but for a limited period only. (42 days, since the most recent amendment, I think). Where necessary, terrorists can be tried without a jury, and with special counsels, so that state secrets are safe but they still get their day in court. Etc.
11.11.2008 5:47pm
Dilan Esper (mail) (www):
This post calls to mind Robert Heinlein's comment that "Logic is a way of saying that anything which didn’t happen yesterday won’t happen tomorrow."

Actually, I think it is simpler than that. Professor Posner is lobbying, as we will see many defenders and fans of Bush's atrocities do over the next few months. We are going to be told how of course Obama can't suspend the "Terrorist Surveillance Program", and of course he can't give civilian trials to detainees, and of course he can't ban torture, and of course he can't end the Iraq War, etc.

And maybe Obama will give in to this stuff. I hope not, but it's possible. But we can hold out hope that perhaps Obama will tell these people that there's a new Sheriff in town, and to let Professor Posner and the rest of them whine on the sidelines as their ideological pet policies get repudiated a la the Alien and Sedition Acts.
11.11.2008 5:47pm
Moneyrunner43 (www):

actually we have several processes and ideas an no consensus on which one is better to use as a matter of policy or whether or not the law (the constitution is law) provides we must use one process or another.

What did you just say?


my point is nobody is against detaining terrorists. everyone is against detaining innocents. the problem is distinguishing between the two. executive arguments (whether they come from bush or obama) that claim (correctly) power to detain military combatants do not address the issue.

Is "everyone" really for detaining terrorists? Some here would contest the existence of "terrorists." Terrorists are not defined in the Constitution. Do the Geneva Conventions use the term terrorists?
Absent that, I’m not sure what you are arguing. There is a system in place for interrogating people who are detained. Using that system, most of them have been released. I’m not sure what your point is. Is it the absence of that infallible judge that I referred to earlier? Is there any war in history that has had more judges involved than this one?
11.11.2008 5:57pm
Moneyrunner43 (www):

You're right! We should give up every liberty in order to maintain security, just like in that V for Vendetta movie. I also think the Bill of Rights is a quaint relic from the 18th century, and we should get rid of it. Including the Second Amendment.

Give it a rest Randy R. Your hyperventilating is fogging up my screen.
11.11.2008 5:59pm
Sarcastro (www):

There is a system in place for interrogating people who are detained


See? Problem solved! We just detain people, and then interrogate them! And those people can be anyone, since the Constitution doesn't define "terrorist!"

Who could ask for anything more fair?
11.11.2008 6:12pm
Anderson (mail):
It's clear under the Geneva Conventions (both the 4th Convention and Common Article 3) that summary executions of illegal combatants are forbidden.

Correct. People who love to cite WW2 examples or case law seem to forget that the present Geneva Conventions were enacted in 1949.

Professor Posner is lobbying, as we will see many defenders and fans of Bush's atrocities do over the next few months.

That is why I initially skipped this thread. I frankly detest Prof. Posner, and am very sorry that the VC invited him to blog here. (Haven't ever been able to get that "Exclude-a-Blogger" feature to work.)
11.11.2008 6:21pm
Thomas_Holsinger:
happyshooter,

The Geneva Conventions permit the immediate execution of unlawful combatants, but American law doesn't. AFAIK, American military law has afforded unlawful combatants considerably more legal protection than international law as far back as the Mexican-American War. This seems to have been an inheritance from the 18th Century British Articles of War which the U.S. Army adopted in toto during the Revolutionary War.
11.11.2008 6:22pm
CDR D (mail):
Robert Farrell sez:

in response to this: Don't the amendments to the constitution apply to US citizens?

"No, not unless the passage says "citizen." If the constitution says "the people" or "person" then that's who it applies to."

Is there a cite which could nail that down? Even some dictum?

In *US v. Verdugo-Urquidez* (1990), there is at least some dicta which observes, "'the people' protected...refer to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." (italics added)

Robert? Anyone?
11.11.2008 6:26pm
Moneyrunner43 (www):

"Combatant" does not mean "very very bad guy." The hijackers were terrorists, which until it became legally convenient to pretend otherwise, were traditionally regarded as seperate and inferior to enemy combatants. (Was the Unibomber a combatant? Is Tre Arrow?)


I'm just trying to understand if the Left believes in the existence of enemy combatants in this war. Or is it a war only on the side of the US and a series of criminal acts on the part of the opposition.

Was the Unbomber part of some larger group? Is there a Unibomber collective? Comparing ELF to Al Qaida seems a bit of a stretch, but if you think it strenghtens your argument, you're a few fries short of a Happy Meal.
11.11.2008 6:30pm
MarkField (mail):
Dilan: Agreed.


Is there a cite which could nail that down? Even some dictum?


Ask yourself this: can a non-citizen be held in slavery? Shot down in cold blood on the street? Raped with impunity?

If not, then you agree that they have rights. Not necessarily the same extent of rights that citizens have under the Constitution, but human rights.
11.11.2008 6:37pm
martinned (mail) (www):
@Moneyrunner43: I wouldn't dare speak for the left, American or otherwise, but clearly the only war here is the war in Iraq and the war in Afghanistan, and even those are wars of a rather peculiar nature since they are both more properly described as counterinsurgency operations, where the US fight on the same side as the lawful government of the country.

Otherwise, the war on terror is only a war in the metaphorical sense. Someone captured in Pakistan, London or Tokio cannot be a combattant, war criminal, unlawful combattant, etc, but only a civillian alleged to be a terrorist.
11.11.2008 6:39pm
Dreadnaught (www):
They should all be sent to live with Prof Tribe.
11.11.2008 6:40pm
martinned (mail) (www):
P.S. Verdugo-Urquidez concerned 4th amendment rights outside the US. This has some relevance for Guantanamo, but not for the difference between citizens and non-citizens inside the borders of the US.
11.11.2008 6:41pm
Thomas_Holsinger:
AFAIK, there is a 19th century Supreme Court decision holding that the 14th Amendment makes the Bill of Rights applicable to all U.S. residents. At the time there was no legal distinction between lawful and unlawful residents.
11.11.2008 7:07pm
Dr. T (mail) (www):
Once again, Posner lists opinions while stating that they are facts. I wonder how he knows what Obama thinks and what Obama will do.
11.11.2008 7:10pm
Robert Farrell (mail):
In *US v. Verdugo-Urquidez* (1990), there is at least some dicta which observes, "'the people' protected...refer to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." (italics added)

Which would still mean, under this standard, that "the people" may be noncitizens. Your silver bullet seems to reinforce my point. You may want to look into that.
11.11.2008 7:16pm
CDR D (mail):
>>>Which would still mean, under this standard, that "the people" may be noncitizens. Your silver bullet seems to reinforce my point. You may want to look into that.

<<<

May indeed be "non-citizens". But still, "a class of persons" that Gitmo detainees do not necessarily meet. That was the point.
11.11.2008 7:23pm
Robert Farrell (mail):
I'm just trying to understand if the Left believes in the existence of enemy combatants in this war. Or is it a war only on the side of the US and a series of criminal acts on the part of the opposition.

If I find the number for the world headquarters of "the Left" I'll be sure to call and ask them. In the meantime, I would tend to say that a combatant is somebody who participates in combat, and a terrorist is someone who participates in terrorism, and someone who carries out terrorism in the context of combat is a war criminal.

Was the Unbomber part of some larger group? Is there a Unibomber collective?

Would that make him a combatant? Mason family, combatants?


Comparing ELF to Al Qaida seems a bit of a stretch,


So if they scared you a little more, they'd be combatants? Legal principles -- any type of principle, really -- should be able to be applied outside the specific case in question. That's what makes it an issue of principle. Terrorism is terrorism. Terrorists are combatants, or they are not. Basically, your argument is that Al Qaida is really really bad, and therefore they are combantants. It doesn't pass the laugh test, and so . . .

but if you think it strenghtens your argument, you're a few fries short of a Happy Meal.

. . . here comes the ad hominem. Yawn.
11.11.2008 7:29pm
TomO (mail):
Just me:

Why can't they be held in Supermax or another U.S. prison? A statute that could be changed. Or do you have a Constitutional Argument. We have held POWs here before, this does not give them bail rights - nor would moving them here now. You still have the right to detain them as enemy combatants, and I have not seen anyone argue that they have a right to bail before that determination is made. I agree it would have been better to keep them in Cuba rather than the U.S. (and whatever state gets screwed will of course be upset), but that is no longer a good option. If we had not made Guantanamo a symbol for the legal black whole theory it would have been fine, but now we will look like we are trying to abuse its special status even if we don't, and we need to regain the trust of the international community so they will help us win this war.
You could keep them in theater, but that is going to create a greater security risk of them being bust out - as has already happened in Afghanistan. And creates greater troubles when we finish the theater campaigns and are still at war with al Qaeda. Also where do you keep terrorists who are not captured in either Iraq or Afghanistan?
11.11.2008 7:31pm
Robert Farrell (mail):
May indeed be "non-citizens". But still, "a class of persons" that Gitmo detainees do not necessarily meet. That was the point.

No, the poster asked "Does the Constitution apply only to citizens?" The answer is "No." That is the point. Some people have the bad habit of ignoring the original question once it has been asked and answered in order to pose the question in a modified form -- asserting (correctly and irrelevantly) that the old answer does not adequetely address the reformulated question. One assertion at a time.

Two things on the new question: first, the existence of a category of people who have no right to challenge the circumstances of their confinment poses the problem of how one can possibly say that any part of "the people" are immune from arbitrary detention. If a citizen is detained without access to due process, how can they prove that they have been wrongly detained and secure their release?

Second: Sometimes the Constitution says "the people," and the US v. Verdugo-Urquidez standard would be relevent to those clauses. Sometimes the Constitution says "persons," a self-explanatory category, including when it says that no "person" may be deprived of "deprived of life, liberty, or property, without due process of law."
11.11.2008 7:42pm
John Moore (www):
I find it hard to fathom the logic that, when fighting against foreign warriors in foreign lands (terrorists or terrorist supporters in this case), we must extend all sorts of protections to these people when captured.

The logic seems to be... if one innocent, non-American is held, the system has failed and is an atrocity. It totally ignores the reality that in this war, and it is a war, innocents are injured and killed despite an unprecedented effort to prevent "collateral damage."

In other words, these commenters seem to believe that it's okay to accidently kill innocent civilians (in spite of taking all due precautions), but it is not okay to accidently hold an innocent, believed to be non-innocent, captured in the same field of battle?

This even though the risk of releasing a non-innocent unlawful combatant is a clear risk to American citizens and our soldier. We have already done this, as evidenced by their re-appearance on the field of battle in a number of cases)

There seems to be some sort of worship of procedure that is disconnected from reality. Perhaps it's the cool-aid given out at law school.
11.11.2008 7:46pm
John Moore (www):
Another issue that is being ignored is the problem of evidence collection. How are we supposed to meet US evidentiary standards (many created to punish prosecutorial or police abuse) with prisoners captured under conditions of war? Do we send JAG officers out under fire to manage chains of custody? Do we fight and capture enemy positions in order to get evidence? Do we give Miranda warnings (or whatever is used these days) to terrorists captured in the mountains of Afghanistan.

Does anyone see the absurdity of using the US legal system in these cases?
11.11.2008 7:50pm
martinned (mail) (www):
@John Moore: The war is in Afghanistan. Does that make someone captured in Pakistan (like those Uighurs, for example) a combattant? Does it matter whether they actually took up arms against the United States, or is it enough that they were in the general vicinity? How far away from the war can someone be and still be considered a combattant? Same continent? Same side of the ocean? Surely at some point a terrorist is so far away from the war, both geographically and motivation-wise, that he can't reasonably be considered a combattant anymore?
11.11.2008 7:52pm
Robert Farrell (mail):
I find it hard to fathom the logic that, when fighting against foreign warriors in foreign lands (terrorists or terrorist supporters in this case), we must extend all sorts of protections to these people when captured.

Yeah, that whole Geneva Conventions thing about how to treat "foreign warriors in foreign lands" was all a big joke, really.

Seriously, fish or cut bait. If you capture "foreign warriors" you should have no problem putting them in an internment camp and waiting for the Red Cross to show up. If, in contrast, you are using a variety of intelligence sources and plain old bounty-hunting tribesmen to round up people who may or may not be your enemies, and your hope is to pressure these people to rat out their networks, and then, hopefully, lock these people away for a long time, then you should accord them the normal rights of criminal suspects, since that is, in fact, how you are treating them in every other respect.
11.11.2008 7:58pm
John Moore (www):
@martinned:

The war is not confined to Afghanistan (and/or Iraq), any more than WW-I was restricted to Europe. The war is world-wide and certainly is taking place in Pakistan and many other places. Afghanistan is a theater in a wider war.

The location of capture, other than in the United States, should't determine the status of a combatant.

Their status is a result of their actions. If they take those actions within the US, there may be cases where the civilian system of law may be appropriate, and there may be cases where it is inappropriate. Outside the US, I see not a whit of reason that the US civilian legal system, developed and evolved over centuries to deal specifically with crimes within the nation and within our form of government, should be applied to individuals outside the US.

That cuts both ways, btw. I don't think we had a right to capture Noriega and bring him to the US for trial on drug charges, any more than the Chinese have the right to come here and grab an American, take him back to China, and try him for whatever.

As for the Uighurs, if they were part of an enemy organization that attacked us, then they are combatants and should be treated as such. In this case, I think the Bush administration would like to just turn them loose, after having determined that they are not a significant external threat to us, but there is no place that will accept them accept China, which would kill them.

The actions of the administration are clearly those of trying to hold only persons viewed as a threat, and to release or repatriate those who are not. How this is viewed as some form of atrocity is beyond me, but hey, I'm not a lawyer, just a Vietnam Veteran who was trained to deal with the sort of "justice" that enemy would give me if captured.

.......

As for the Geneva Convention of 1949, we DO have the right to shoot unlawful combatants. We just have to constitute a court and try them first.
11.11.2008 8:06pm
CDR D (mail):
No, the poster asked "Does the Constitution apply (only) (sic) to citizens?" The answer is "No."

Not quite. The poster asked, "Don't the amendments to the constitution apply to US citizens?"

The answer is "YES". You inserted the word "only".


The dicta I provided suggests that they may not apply to non-citizens.
11.11.2008 8:08pm
John Moore (www):
@Robert Farrell writes:


If you capture "foreign warriors" you should have no problem putting them in an internment camp and waiting for the Red Cross to show up. If, in contrast, you are using a variety of intelligence sources and plain old bounty-hunting tribesmen to round up people who may or may not be your enemies, and your hope is to pressure these people to rat out their networks, and then, hopefully, lock these people away for a long time, then you should accord them the normal rights of criminal suspects, since that is, in fact, how you are treating them in every other respect.


If we capture lawful foreign warriors, damn straight we do as you say. That isn't the debate and hence your first sentence is a straw-man.

The whole issue is about people who themselves violate the Geneva Convention by engaging in warfare (including terrorism) without meeting the requirements of a lawful combatant.

Would you care to answer the issue of why an enemy combatant or organization should obey the convention when they pay no penalty for not doing so? Is the convention meant to be a suicide pact for the good and an escape hatch for the bad?

See my other post about the absurdity of using our criminal justice system for people whose activities take place outside of our country. I re-iterate: the system is simply not designed nor evolved for anything close to the situation we face. As a simple example, rules of evidence are designed not just to protect the immediate accused, but to protect the whole class of accused by punishing the state for abusing them. If we therefor currently use our standards for excluding evidence, what exactly are we trying to achieve? And do we have to turn our soldiers and other operatives into policemen, with the evidentiary rules that apply? The whole idea is quite frankly absurd.
11.11.2008 8:13pm
martinned (mail) (www):
@John Moore: If a certain person is "a part of an organization that attacked us", they are soldiers under the Geneva Conventions. That is, I assume that by "attacked us" you mean launched attacks in some theatre of war, such as Iraq or Afghanistan. No, 9/11 does not count.

Currently, the US are engaged in warfare in two theatres, as you correctly point out. Whether those are one war or two is irrelevant. (Given the non-existent link between Saddam and Al-Qaeda, I would vote two, but nevermind.) Someone who is part of an army or a militia operating in one of these two theatres is an enemy combattant, regardless of where they are captured.

Most individuals that we are talking about here, on the other hand, are not accused of having some link to the war(s) in Iraq and Afghanistan, but rather of plotting attacks against the homeland, or other NATO allies. (BTW, where did this word "homeland" come from all of a sudden? It really creeps me out, probably because it sounds and feels too much like the German "Heimat".)

A tricky halfway problem exists for those who are caught training in Pakistan and similar places. Their link to the combatants in Afghanistan and Iraq is usually tentative at best. (Those Uighurs, who are admittedly a bad example on account of being innocent, stood accused of training in a camp run by an organisation allied to Al-Qaeda. That was the best link to the combattants that the DoJ/DoD could come up with.) What are they training to do? And which organisation, if any, do they belong to? Part of what potentially makes them unlawful combattants is exactly that they don't belong to any army or regular militia. Surely if one is to treat them as POWs, their status must depend on some minimum link? And in the absence of such a link, surely they should be treated as the civilians that they are?
11.11.2008 8:20pm
John Moore (www):
@martinned, actually the US is engaged in warfare in more than two theatres Only those two are obvious. For example, we have been actively engaged in warfare in the Sahel for years - it is another, lesser known theater.

I agree that those caught training are in a slightly different situation than those caught engaging directly in armed combat. But how about those providing supplies to illegal combatants? Ultimately, it is reasonable to treat members of these organizations that wage illegal warfare against us as illegal warriors. The treatment of individuals in that status has to vary based on their individual cases, as it has in Guantanamo.

I wish you hadn't mentioned the Iraq/Al Qaeda issue. It is another straw man and would lead us off track.
11.11.2008 8:25pm
martinned (mail) (www):
@John Moore: Why should it be unreasonable to ask US authorities to Mirandise a detainee before questioning them? How hard is that?

As for the rules of evidence, there is more wiggle room there than I think you realise, especially when the evidence in question is obtained from other governments, or on foreign soil. (After all, the aforementioned ruling of US v. Verdugo-Urquidez established that the US government is not bound by the 4th amendment ban on unreasonable searches and seizures when it operates outside the US.) And in the end, I'm sorry, but I don't think it is unreasonable to ask the government to actually prove its case with probative evidence. I suppose the exclusionary rule is a problem, especially since it has been read into the constitution and can therefore not be legislated around, but otherwise the government's main problem is that in most cases its evidence is simply not very convincing.
11.11.2008 8:29pm
Robert Farrell (mail):
Not quite. The poster asked, "Don't the amendments to the constitution apply to US citizens?"

The answer is "YES". You inserted the word "only".


I paraphrased. The question is clearly not about whether the Constitution applies to citizens (we all know it does). The questioner implied that it only applied to citizens, which is, of course, false.

The dicta I provided suggests that they may not apply to non-citizens.

You are continuing to ignore that this opinion states only that certain noncitizens may not enjoy the protection of certain constitutional protections, whilst endorsing the idea that noncitizens do indeed have constitutional rights.
11.11.2008 8:39pm
martinned (mail) (www):
There's a war in the Sahel? Where?
11.11.2008 8:41pm
Robert Farrell (mail):
You are continuing to ignore that this opinion states only that certain noncitizens may not enjoy the protection of certain constitutional protections, whilst endorsing the idea that noncitizens do indeed have constitutional rights.

I'm quoting myself here, but let me cite the part of US v. Verdugo-Urquidez that makes this explicit:

Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. . . .

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." . . . While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. . . . The language of these Amendments contrasts with the words (p.266)"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
11.11.2008 8:51pm
John Moore (www):
@martinned, eastern Sahel.US forces in Djibouti engage in it. I have discussed it with a veteran of that conflict. There have been news reports of airstrikes on Al Qaeda forces there, in one case about 100 enemy killed by a US P-3 Orion directed by special forces. Because of its relatively lawless and remote characteristics, parts of the Sahel are home to parts of Al Qaeda, and also Al Qaeda affiliated groups that attack their home North African countries from the region.

Also don't forget the on-again, off-again war in Somalia, in which US forces have recently participated.

Oh, and there's clearly a war in Pakistan also. It is not merely an extension of the war in Afghanistan, but is also a war directly against Al Qaeda. Of course, due to Pakistani politics, that war is often by black ops and is somewhat quiet other than the Predator stikes.

US forces have also recently engaged in warfare in the Philippines against Muslim extremists, although mostly in support of native forces (or so it is made to appear).

The war against Islamic Terrorism is truly widespread, with enemy in a lot of places, and US forces, usually small detachments of special ops folks, all over the place.

It is not simply a war against Al Qaeda. It is a pre-emptive war against Islamist groups who have loose affiliations but share a common goal of using terrorism, including terrorism against the US and its allies, to achieve combined religious and political goals.
11.11.2008 8:53pm
martinned (mail) (www):
@John Moore: Ah, now I see the source of your confusion.

1. A war is an armed conflict between two sovereign states. Both Iraq and Afghanistan constitute the aftermath of such a conflict. The conflicts you list do not.

2. The conflicts you're referring to are eloquently known as conflicts not of an international nature. In such a conflict, the US can either be offering assistance to the government, or trespassing, depending on whether they asked anyone's permission before they sent their soldiers.

So to the extent that there is a civil war in Pakistan, the US are not a party to it, unless the Pakistani government asked for US help while I wasn't looking. This means that no POWs can be captured by the US incidental to this conflict. The same goes for many of the other conflicts you mention.

Let me be clear: It is possible for the US to be a party to a civil war, in the sense of (lawfully) offering assistance to one of the fighting parties, but when they're simply sending out special forces to hunt for terrorists, there is no war, no POW status for any terrorists captured (nor for any US soldiers that might be captured), and no possibility of considering any detainee anything other than either a combattant to someone else's war, or a civilian.
11.11.2008 9:03pm
Vermando (mail) (www):
"Hurrah for symbolism!"

That is why I am so F-ing glad that those SOB's lost that election. As the informed discussion above shows, this is serious stuff that reasonable (and unreasonable) people can disagree about, and these classless clowns treat it like a joke.

I agree with Anderson. Very, very happy that this viewpoint no longer represents us.
11.11.2008 9:24pm
Moneyrunner43 (www):
John Moore,

Give it up. You are talking past each other. To the “martinneds” and the “Reobert Farrells” the definition of war is fixed. To them, the nature of war is immutable, unchanging. As one said, the war on terror is a metaphorical war. And the 9/11 highjackers were not part of any war, just bad people who committed a crime. As I understand that reasoning, Al Qaida is really a crime family, like the Mafia who send out people to commit criminal acts to bring down buildings and kill people for … well at that point the analogy breaks down, but I’m sure that they can fill in the blanks.

The ultimate object is to make murders committed in the name of Jihad a problem for the cops. THAT they understand because we can then issue warrants for their arrest, Mirandize them if we catch them, offer them bail, get them a good defense attorney, etc. It’s familiar ground and they know the rules. The war we are in is outside their comfort zone so it’s reality must be denied..
11.11.2008 9:49pm
martinned (mail) (www):
@Moneyrunner43: Aha, so you do understand the nature of law. Indeed, it is immutable, unchanging, unless it is lawfully changed. I can see how you would find this an inconvenience.

Might I suggest that, not only is the war on terror only metaphorically a war, it's not even a very good metaphor. Wars can be won. The war on terror, like the war on drugs, can never be won. The best result imaginable is a draw. So in the short term it may be useful for the government to portray its efforts as a war, but in the long run the war-approach is getting everyone in trouble.

The people best equipped to fight this "war" are not the military, but the security services in the UK, and the intelligence agencies and the FBI in the US. And in a free state, there should be some legal framework for them to work under. That doesn't mean necessarily the current laws, but at least some laws. And no, that's not the laws of war, because they were never meant for such a purpose. (All these new inbetween categories between POW and civilian have no or very little basis in actual law.)

In Britain, the Prevention of Terrorism Acts are constantly being updated, based on their experience so far. One can argue whether any given amendment is a good thing or not, whether it was really necessary to extend the detention period from 28 days to 42 days, etc., but at least everyone is working within a legal framework, for the better protection of civilians and terrorists alike.
11.11.2008 10:08pm
Moneyrunner43 (www):
Robert Farrell


If I find the number for the world headquarters of "the Left" I'll be sure to call and ask them.


Interesting bit of sarcasm that ducks the issue. Am I wrong in assuming that you are Liberal? Because the position you have taken is usually associated with the left side of the political spectrum.

In the meantime, I would tend to say that a combatant is somebody who participates in combat, and a terrorist is someone who participates in terrorism,


Yes and an apple is an apple. Is banality taught in law school these days?



Would that make him [the Unibomber] a combatant? Mason family, combatants?


The question is a silly one. They were domestic criminals. I thought that legal eagles were all about “nuance.”



So if they scared you a little more, they'd be combatants? Legal principles -- any type of principle, really -- should be able to be applied outside the specific case in question. That's what makes it an issue of principle. Terrorism is terrorism. Terrorists are combatants, or they are not. Basically, your argument is that Al Qaida is really really bad, and therefore they are combantants. It doesn't pass the laugh test, and so . . .


Is that your definition of combatants? People who are scary? What a strange way of viewing the world.
Your attempt to mischaracterize my position is laughable. Yes, I think Al Qaida is bad (don’t you?) but being bad does not make one a combatant. You even contradict yourself when you try to argue that the Unibomber and the Manson family are combatants.

There is a principal involved; it’s you who fail to understand it.
11.11.2008 10:19pm
Moneyrunner43 (www):
Martinned:


Aha, so you do understand the nature of law. Indeed, it is immutable, unchanging, unless it is lawfully changed. I can see how you would find this an inconvenience.



You appear to have a reading comprehension problem. I told John Moore that your understanding of WAR was stuck in a time warp. I said nothing about your understanding of law.

I am always curious about the childlike faith of legal people in the efficacy of police forces. That did not work out so well for us on 9/11 or the Spanish on the train, or the Balinese, or the sailors on the Cole or … well lisitng the large and small battles in this war can go on for a long time.

I can see how you want to believe that the war against violent Jihad has all the metaphorical reality of the war on drugs (or the war on poverty) because they are ALL SO SIMILAR. You do nuance so well.
11.11.2008 10:33pm
mojo (mail):
1) Shoot them all.
2) Feed them to the sharks in Guantanamo Bay.
3) If anybody asks, say "Who?"
11.11.2008 11:11pm
Anderson (mail):
As I understand that reasoning, Al Qaida is really a crime family, like the Mafia who send out people to commit criminal acts to bring down buildings and kill people for … well at that point the analogy breaks down

Are we really to give a rat's ass about the motives of the Mafia or of al-Qaeda? Except insofar as that knowledge helps us apprehend 'em?

... "War" is not merely a word for tough guys to congratulate themselves with. We don't go to war with Timothy McVeigh, or with mafiosi, or with pirates, or with the self-proclaimed jihadists who plotted 9/11. We go to war with sovereign nations. Outside that context, we may use military force, but we are not "at war."

Where al-Qaeda is operating in a sovereign nation, we either rely on that nation to assist us -- we would not drop bombs on a Qaeda safe house in Paris, France -- or we declare war on that nation when it fails to do so -- as we did with Afghanistan.

A third possibility is where al-Qaeda operates in what Pakistan claims as its sovereign territory, but where Islamabad's writ evidently does not run. We need not hesistate to use force there, because we have little practical alternative; our constraints are political (how badly do we wish to piss off Pakistan, etc.).

Once we are lucky enough to nab a KSM or an Osama, however, the rationale for military force is at an end; the suspect is in our power. At which point, we can indict, try, and convict the s.o.b.

But some prefer to glorify al-Qaeda as "the worst of the worst," "a new kind of enemy," etc., etc. Osama's crew surely enjoy those appellations, even recruit with them.

They don't deserve the honor. They're common murderers who deserve to be treated as such. We extend due process to them because *we*, unlike they, believe in human rights -- hold them to be self-evident, one might say.

When we cease to recognize those inalienable rights, we begin to resemble our enemies. Which some of you, evidently, are fine with.

Take a little pride in your country and your Constitution.
11.11.2008 11:30pm
Michael Edward McNeil (mail) (www):
The authorization for the use of force passed by Congress on September 18, 2001 — which the now soon-to-be Vice President of the United States, Senator Joe Biden, then Chairman of the Senate Foreign Relations Committee and author of the resolution in question, emphatically affirmed is the exact Constitutional equivalent of a declaration of war (and the founder of this blog, Eugene Volokh, has written he agrees with) — does not mention Afghanistan, but rather states:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
How, then, can one argue with a straight face that this war is only a “war” within the borders of Afghanistan?
11.12.2008 1:22am
DiversityHire:
ObeliskToucher:
I've always thought Fairbanks, AK would make a good site for a detention camp if Guantanamo is closed...

Hey, that's my hometown! And, as far as detention camps go, it wasn't so bad.

Are you from Fairbanks, too, Obelisk?
11.12.2008 2:21am
Kevin P. (mail):

martinned:
1. A war is an armed conflict between two sovereign states.


A war is by no means limited to sovereign states. The US has fought plenty of wars in its history against non-sovereign actors. There are wars ongoing right now between non-sovereign actors.
11.12.2008 2:48am
martinned (mail) (www):
@ Kevin P.: Yes, such a thing is colloquially called a civil war. Both the Geneva Conventions and the UN Charter, to name two important sources of the law of war, make clear distinctions between wars between states and civil wars. For example, Common Article III, which deals with POWs, only applies to civil war in some places, where it explicitly says so.

@Michael Edward McNeil: Easy, you read what it says. You can go to war with a country or a rebel army, but not with an organisation, generally. So the US is at war with the Taliban, and is using military force against Al Qaida. The post by prof. Volokh that you cite most certainly does not claim that all use of military force under the AUMF is war. Some of the force that is authorised by it is war, and some of the force authorised involves messing around with special forces in places with funny names. (Rather, Volokh says that Iraq and Afghanistan are declared wars, which is obviously true. Also, he was talking about US constitutional war powers, and I was talking about the international laws of war.)

Let me just quote Anderson with approval: "[If] al-Qaeda is operating in a sovereign nation, we either rely on that nation to assist us -- we would not drop bombs on a Qaeda safe house in Paris, France -- or we declare war on that nation when it fails to do so -- as we did with Afghanistan."

(In the next paragraph, he mentions Pakistan, which is tricky, and where the legal nature of US involvement depends where much on whether it is approved by or acquiesced in by the government in Islamabad.)

@Moneyrunner43: You say police, I say security services and special detention facilities. Tomato, tomáto. (And just a reminder, I certainly didn't say anything about giving anyone bail, or of using ordinary civilian courts under exactly the same procedures as normal criminals.)

O, and BTW, you're being deliberately obtuse. No one is arguing the Manson family were combattants. Rather, the saner voices were saying that terrorists are generally not soldiers, and, as long as they stay away from theatres of war, not combattants either.
11.12.2008 4:22am
CharleyCarp (mail):
The only thing more pathetic than fear of the 90% of GTMO prisoners who are not in any meaningful sense terrorists or even potential terrorists, is fear of the Constitution. The President-elect is not afraid of the Constitution, or of US law. This is going to take some getting used to, I know.

It's always sad to read commentary about GTMO unmoored from the facts. You can't talk about "spies" when referring to people who did not, and never have, engaged in spying. There's no point in talking about battlefield captures with respect to people who were not captured on a battlefield. Is the airport in Gambia a battlefield? Anywhere in Thailand? A courthouse in Sarajevo? An apartment building in downtown Karachi? It doesn't make sense to talk about the burden on our soldiers as to prisoners who were turned over for a bounty, bound and gagged, black and blue.

And spare me the analysis of the declassified CSRT files. You can't tell the difference between allegations that came from careful CIA study, and those that came from fellow prisoners looking for a cushy billet, nor can you tell which allegations are inconsistent, or irreconcilable, with provable fact. Of the two ways to process prisoners -- executive release based primarily on diplomatic considerations or review of the evidence by an impartial authority -- it's hard to see why any but the most hardened authoritarians would want only the former and never the latter.

Anyway, the news stories that set this off were just speculation. Let me venture a prediction. Somewhere between 15 and 35 prisoners will be brought to the US to stand trial in a military court. No federal judge will grant bail to any of them. The rest will be sent home (75%), or resettled (25%) in third countries as refugees.
11.12.2008 6:59am
CharleyCarp (mail):
Long ago, authorities using enhanced interrogation techniques were able to get people to confess that they'd written their names in the Devil's book, flown through the air from Salem to Boston, used their spectral bodies to torment others and kill livestock. What kind of idiot reads these confessions, and argues that these things really happened?
11.12.2008 7:16am
Richard Aubrey (mail):
Charley.
Not so long ago, enhanced interrogation techniques (look, there's your mother's head in a fishbowl) enabled the Nazis to follow resistance networks. Effectively.
I understand that insisting there is never, ever any truth to be gotten from torture relieves us of any moral conundrum.
Moral conundrums are the worst kind.
11.12.2008 8:08am
martinned (mail) (www):
@CharleyCarp &Richard Aubrey:

I would say that "real torture" should never be OK, because it is an affront to human dignity, our common values, etc. It is simply so spectacularly wrong that it should be completely off the table, no matter how useful it may be. But there also coercion methods that would not be lawful in a normal criminal investigation that are useful and proper in a counterterrorism operation. The trick is to find a way to tell the difference. Obviously the "real torture" category is broader than only treatement that causes pain akin to immanent death or organ failure. (I think that's what Yoo wrote.)

I'm not sure where I'd draw the line, but it is a conversation that is urgently necessary, and should not be confused with the question of what works, or the question of what should be lawful in a criminal investigation. (Both those questions matter, but should not be decisive.)
11.12.2008 8:15am
Richard Aubrey (mail):
martinned, and Charley.

It was eminently predictable that I would be accused of thinking torture is okay. It's necessary to accuse me of that, because the reality--that it can work--puts us back in the face of a moral conundrum that most would prefer to avoid.

Yup. Just as predictable as the sun rising each day. Of course, the accusers know they lie. But they have to. They have no choice.
11.12.2008 8:36am
martinned (mail) (www):
@Richard Aubrey: I accused you of no such thing, and I grant freely that torture can work. My position is, however, that there are some things we should not do even if they do work.
11.12.2008 8:43am
martinned (mail) (www):
BTW, here is Jack Balkin's view.
11.12.2008 9:17am
lonetown (mail):
I think the symbolism of democrat election fraud is far more damning and disturbing in the long run.
11.12.2008 9:37am
Anderson (mail):
But there are also coercion methods that would not be lawful in a normal criminal investigation that are useful and proper in a counterterrorism operation.

If coercion worked, it *would* be lawful. The problem with "coercion" is the same as with torture: it makes people say whatever will get the "coercion" to stop. God knows, the police obtain enough false confessions as it is.

Richard Aubrey's admiration for the Nazis' methods omits the fact that, while the Gestapo did sometimes use torture, there is no reason to believe that proper interrogation methods wouldn't have had the same result. Interrogation requires skill; beating someone with a rubber hose does not.

Besides, the Gestapo had another motive for torture: creating fear in the general population. Gleaning information was secondary. And when information really was needed, as with Allied flyers who might've had valuable intel, the Germans used real interrogators who never laid a glove on the prisoners.
11.12.2008 9:45am
I Know It All:
We need an adopt-a-detainee program. Maybe this could be done at law schools. The idea is that a law prof guarantees the good behavior of one of these little darlings. Now, if one of the oppressed victims should engage in bad acts, the law prof gets sent to Gitmo.
11.12.2008 9:58am
martinned (mail) (www):
@Anderson: In a criminal investigation, the rules are based on the relative interests and rights of the accused and of society. At it should be, this means quite a lot of rights for the accused. In a counterterrorism operation, it is just that this balancing operation should lead to fewer rights for the accused.

Also, compared to a criminal trial, the kinds of information that might be obtained is different, as are the possibilities of verification. (No one is looking for the accused's confession. Rather, what the interrogators want to know is who he works with, what the plans are, etc.)

Another difference is the relative consequences of type I and type II errors. (Letting a hundred guilty men go free is one thing in a criminal trial, but in case of counterterrorism I'd rather have that one innocent man detained.)

So no, not everything that "works" is lawful in a normal criminal investigation, and yes, an assessment of all the factors should lead to a different set of rules for counterterrorism than for ordinary criminal law.
11.12.2008 10:00am
Richard Aubrey (mail):
Anderson.
Predictable. That I "admire" the Nazis' work. Predictable.

Problem is, it works. If you could prove it never worked, you wouldn't have a moral problem. As in, how many of our guys' lives will we lose because we didn't use torture?
Nobody wants to address that question and insisting that torture not only never works but can never work allows you to skate.

You will note that the Germans knew we had their guys. Taking it easy on Russian POWs was not necessary to make the Russians take it easy on Germans they'd captured since only about 10% of them would survive anyway. Nothing to gain there.
11.12.2008 10:51am
Anderson (mail):
Mr. Aubrey, your repeated example of the Nazis' use of torture is a feature of many VC threads, and you use that example to argue for our own use of torture. It's a matter of public record. If the debate were about sodomizing prisoners, and you took every opportunity to point out that sodomizing prisoners is effective, and failing to do so will cost American lives, what inference would we be expected to draw?

As for "it works," no, it doesn't, as many people besides me have said. Yes, you will sometimes get good intel from torture. You will also get bad intel, offered to deceive you or to stop the pain -- er, "coercion." Torture also has a way of getting out of hand, resulting in dead suspects, brutalized or traumatized torturers, public loathing and retaliation ... Algeria, anyone?

"Rapport-based" interrogation, in which clever psychology is used to persuade the subject to willingly provide what he knows, is superior. It requires skill and training, neither of which the CIA had on 9/12/2001. Hence the resort to torture, and the retroactive justifications of torture as "necessary" for "the worst of the worst."

Some FBI agents fluent in Arabic could have gotten better info out of KSM in a week than we ever got out of him by torture. You saw his confession? Murdered Santa Claus and Jimmy Hoffa, didn't he? The bastard!
11.12.2008 11:04am
Anderson (mail):
In a criminal investigation, the rules are based on the relative interests and rights of the accused and of society.

This does not change when the accused is KSM. He has human rights. We have interests in obtaining valid intel from him. Human rights do not stop being human rights in the case of "necessity," the plea of every tyranny. That's why they're called "rights."

And regardless of his rights, using techniques copied from Chinese brainwashing methods is not the way to obtain valid intel.

"Coercion" in general is not the way to obtain valid intel.

Once again, we see the notion that proper interrogation is a weakness which we must shrug off when the chips are down. It's not. It's the best method we know. And through incompetence and malice, we didn't use it. How many lives did that cost? The people who might know the answer have a vested interest in our not finding that out.
11.12.2008 11:10am
Richard Aubrey (mail):
Anderson.
I see you dropped "admiration" once you got called on it.
I do not argue for torture. I do not argue against it.
I make the point that, since it works under some conditions, eschewing it under some conditions will have a cost.
I make the point that ignoring the cost is intellectually cowardly.
I make the point that the intellectual cowardice is buttressed by the false assertion that it never works.
You make your choice, but don't pretend there is no cost. Because that would be a lie, and you know it.
11.12.2008 11:19am
Anderson (mail):
I do not argue for torture. I do not argue against it.

Sure you don't.

I see you dropped "admiration" once you got called on it.

Well, let me reinstate that, then. Torture is an inferior method, and since you argue repeatedly that we should use an inferior method, I suppose it's due to your personal affection for it. You don't offer ANY proof that torture is a better method than professional interrogation techniques. You just cite to the Nazis as role models whose example we should be following.

I'll see your "intellectual cowardice" and raise you "moral cowardice."
11.12.2008 11:23am
Richard Aubrey (mail):
Yeah. That, too.
Those who claim torture never works and so there is no cost to be considered in eschewing it are moral cowards as well. Thanks for reminding me.
11.12.2008 11:26am
martinned (mail) (www):
@Anderson: No, KSM's rights don't change, but given the scale of the havoc that might be prevented, society's right to life (and property) gets a higher weight.

And yes, all of this is predicated on the assumption that enhanced interrogation sometimes works. Here, as with lawmaking, the US would do well to have a chat with those that have more experience with the problem. (I remember reading an interview with an experienced Shin Beth interrogator, but I can't find it anymore. This one, from the Washington Post, is in a similar vein.)
11.12.2008 11:30am
PLR:
I do not argue for torture. I do not argue against it.

Interesting. In context and out of context, that's a hell of a sentiment.
11.12.2008 11:31am
Elliot123 (mail):
"Otherwise, the war on terror is only a war in the metaphorical sense. Someone captured in Pakistan, London or Tokio cannot be a combattant, war criminal, unlawful combattant, etc, but only a civillian alleged to be a terrorist."

Perhaps we simply suffer from a lack of sufficient vocabulary. Words tend to come from experience, it appears we lack that experience, but are now gaining it. Lacking an appropriate word, we try to use existing words, then get stuck with their exising definitions which don't match our current situation.

Maybe we could start by asking what the guys in the planes at the World Trade Center were doing. Was that war? Murder? Vandalism? Assault and battery? Criminal destruction of property?

Law also tends to come from experience, and when we lack sufficient experience, we lack sufficient law. But law needs words.

I suggest a new word: tar. It is a situation in which we are fighting against organized groups of foreigners who are trying to kill us anywhere in the world. Then we could come up with all kinds of rules for tar and those so inclined could comb through them to make sure we are adhereing to the rules of tar.
11.12.2008 11:40am
martinned (mail) (www):
@Elliot123: This tar thing works for me. I'm not sure if it's necessary, but OK. The problem with seeing the war on terror as a literal global war is that it means the US can do pretty much whatever it feels like. After all, in a war zone the fighting parties are pretty unrestricted in their freedom to kill and detain. Making the whole world a war zon thus leads to problems.

That's what I've been saying in this entire thread: Quite a few things the US have been doing are in and of themselves defensible, but they should be embedded in a legal framework that guarantees at least some rights for those detained. (i.e. as many as possible)
11.12.2008 11:49am
Richard Aubrey (mail):
PLR.
Nice catch. If I were to argue for it or against it, that would be a separate subject. As I say, my point here is to make the point that ignoring the cost is moral (thanks, A) and intellectual cowardice supported only by a false premise.
What you or I choose to do with the conundrum is a different question.
I use the Nazis because if I used the Russians I'd get crapped on for being a McCarthyite. Got that lesson with some faith-based peace folks in Central America in 1987.
11.12.2008 12:06pm
John Moore (www):
There are those who want a binary, black/white view of things. It's war or it's not war. If it's not, use the US civilian justice system. That sort of thinking is not useful in this context.

The reason the enemy is not criminal is that their goals are political and their methods are a mix of terrorist, paramilitary and military. It is not a civil war in the US because they are (usually) not part of our society. The reason this is best considered a war is because the government, though congressional statue, has been authorized to use all the means of warfare, because that is the only way to fight this threat.

To get to the treatment of prisoners, we must IMHO consider whether they are citizens and where their actions take place. Clearly we do not want the government's actions against citizens within the United States to be as unburdened as their actions against foreigners, especially foreigners outside the United States. Hence a US citizen engaged in this war would be charged in the civilian system. This has been done, with "the American Taliban" indicted for treason - a criminal offense.

Equally clearly, to anyone not part of a suicide pact or willing to give up innocent lives to avoid disapproval of European elites, a non-US citizen, captured outside the US, should not be treated as a US criminal. To do so is clearly folly, and yet the only thing we hear in defense of this is "GTMO is an atrocity," or "we must follow the rule of law" (even if US law and international law were never defined for this situation), or definitional twisting about what old-fashioned category this conflict does or does not fit into.

This is a new kind of war. It is new for the following reasons:

1) The enemy is stateless (for the most part) but seeks to cause massive damage to the US for political and religious purposes

2) The enemy plans to use weapons of mass destruction, where a single individual or a small group can cause the deaths of thousands to millions (read up on bio-war if you want to understand the stakes)

3) Advances in technology, including travel, computing, telecommunications, and WMD creation are unprecedented and constitute a discontinuous change from prior situations. We have not faced explicit nuclear and biological warfare threats of this magnitude ever before. As a technologist, it is clear to me how grave the danger is.

It appears to me that those who want to criminalize this conflict, and use the US judicial system, simply do not comprehend the magnitude of the threat and the terrible mismatch between the criminal justice system and international terrorism. Either that or they consider the threat of limited use of non-judicial approaches (against foreigners) to be a threat greater than that of a nuclear weapon detonated in downtown ManHattan or a weaponized SARS virus released in airports throughout the US.
11.12.2008 1:56pm
David Warner:
Less prisoners is as likely to mean less mercy at the front as more at the rear.
11.12.2008 1:59pm
martinned (mail) (www):
@John Moore (briefly):

It is the nature of the law that some questions have to be answered yes or no: the defendant is guilty or not, a person is dead or not. The laws of war only apply when there is a war, so unavoidably one has to decide whether something is a war before such laws can be applied.

Otherwise, throughout this thread I've never argued for a black and white approach. I have applauded the UK and Israeli approaches, which are both characterised by a hybrid system, halfway between the laws of war and normal criminal law. Imho, the situation does call for some unusual measures, but such measures have to be defined by and limited by congressional statute, more than they are now.
11.12.2008 2:11pm
John Moore (www):
The issue of torture and "coercive interrogation" ultimately comes up in these discussions.

Torture (or coercive interrogation) is used for three reasons:
1) By an oppressive government, to cause pain and psychological/physical harm for the purpose of suppressing dissent
2) By sick individuals, to cause pain for the pleasure of the torturer, or as revenge
3) By information seekers, to obtain critical information otherwise not attainable, or in a more timely manner.

Too many people seem blinded by case 1, thereby placing the full moral condemnation due that usage on #3 also. This is a logic mistake, or alternatively an irresponsible rhetorical weapon.

Some people fear that if #3 is allowed, #1 will follow. This is a slippery slope argument (so well discussed on this blog) that is valid, but must be balanced by risk and tempered by procedure.

Some fear the negative effects of #3 on the psyche of the person administering the interrogation. This is valid but again an issue of balancing risks.

Some people believe that #3 can never be justified because of its moral reasons. These people simply have not properly considered the situation:

-the "ticking bomb" scenario, which is very real.

-the rather obvious question of whether coercion or torture (especially of the mild variety such as water-boarding) is worse than what we inflict upon the enemy, and innocents, in carrying out clearly lawful war. The answer should be obvious - it is better to be water-boarded than to be killed or maimed by a misguided bomb.

Finally, of course, there are legal issues. In my opinion, this is one area where idealists using logic based on #1 have overly restricted #3.

The issue of efficacy is bandied about.

Like many, I have gone through a US military school where we were subjected to mild torture (today they use water-boarding) because it was expected that the enemy would use torture. It was hoped that experience of at least low level, non-injuring torture, far less than our enemies use, would be helpful in dealing with it. Both expectations were correct.

If you don't think torture works, look closely into what happened in the Hanoi Hilton. As just one example, John McCain, who showed great bravery and made voluntary sacrifice of his freedom, broke under torture and did the enemy's bidding.

We were taught that it does work, and how to deal with the consequences of the inevitable situation where we would give up secrets.

You will certainly find interrogators who will tell you it doesn't work. What you won't find many of is interrogators trained in the use of coercive interrogation (such as water-boarding) who have used it against enemies, who will say it doesn't work.

And of course, you have to explain the persistence of the use of torture, to gain intelligence, throughout all of recorded history. Were all those interrogators wrong, and did none of them learn from the failures of others? Of course not!
11.12.2008 2:18pm
Richard Aubrey (mail):
John Moore.
WRT your last graf:
Some would be implying, in their statements on the subject, that states have maintained, at some cost, playgrounds for sadists. For thousands of years. To no end but the entertainment of sadists.
That seem reasonable to you?
11.12.2008 2:23pm
John Moore (www):
@martinned

In general, I agree with what you have said. However, getting hung up on whether this is a war or not demonstrates how legal thinking can cripple effective action.

The world we are dealing with is not binary, and to force a binary decision on it, simply because we don't have other legal frameworks to deal with, is suicidal.

I agree that we need to set standards, using the normal processes of Democratic government. The executive war powers, however, do supercede that requirement in emergencies. This was is no longer an emergency, but it was in 2001 and 2002, when a lot of the more controversial actions started.

Of course, attempts were made, WRT detainies, to set up a legal framework. The administration has no desire to hold innocents in Guantanamo forever. A framework was set up by Congress and the administration, attempting to meet the requirements set up by SCOTUS. Then the Supreme Court, one of the most tyrannical parts of our government, struck it down. Now another framework has been created - a not unreasonable one.

People act as if Guantanamo has been a static situation. In fact, most detainees have been shipped out, often to freedom. That was done when they were determined to probably not be dangerous. There were errors in this process in that some of those individuals were indeed dangerous as was shown by their subsequent participation in warfare against us.

Lately, after reacting to SCOTUS actions, the administration is in the process of adjudicating the status of detainees. Naturally this is not enough. NOTHING is enough for so many critics, who strangely believe that the US Judicial system is the appropriate place to deal with these matters. History and common sense says they are dangerously wrong.
11.12.2008 2:28pm
John Moore (www):
@Richard Aubrey

No, it is absurd that states for thousands of years would set up torture for the pleasure of sadists. However, it is true that sometimes states have set up such things for the entertainment of sadists, when the sadists had enough power. Saddam Hussein and kids used torture for pleasure in addition to suppression of dissent.
11.12.2008 2:30pm
Richard Aubrey (mail):
John.
Right. I recall that.
However, when the bosses weren't the ones getting their jollies, which was the usual case, they still paid for the process.
For nothing?
Doesn't seem likely.
11.12.2008 2:51pm
Elliot123 (mail):
Perhaps fifty years from now we will learn that Guantanamo was a diversion set up to occupy the human rights crowd, give them something to feel good about opposing, and keep their attenion away from the people actually taking responsibility for the fight.
11.12.2008 3:16pm
frufru:
-the "ticking bomb" scenario, which is very real

And we wouldn’t want to get anyone in trouble for preventing a real ticking time bomb from going off, would we.
11.12.2008 3:31pm
byomtov (mail):
John McCain, who showed great bravery and made voluntary sacrifice of his freedom, broke under torture and did the enemy's bidding.

Isn't the case that McCain made some confessions, but in fact did not provide useful information to his interrogators?

I don't think the fact that torture can be used to extract false confessions is much of an argument in its favor.
11.12.2008 3:42pm
Richard Aubrey (mail):
byom.
It all depends. One guy confessed to flying with Lt. Ben Casey and LtCdr somebody else popular on television at the time.
He got away with it until the peace freaks in this country told Hanoi they'd been suckered. He took it in the shorts after that, big time.
So there's more to consider these days than the information.
IIRC, what they wanted from McCain was a statement condemning the US actions or something like that, not info. If they'd wanted info, presumably they'd have gotten it. But, as somebody said above, much of that info is time-sensitive, over some time horizon, and begins getting stale on the day the guy is caught. Eventually, there's nothing to get from him but stuff like propaganda info. New problem is, the left pretends to believe that stuff, while in the old days, nobody did.

Now, if I had your daughter and a paper clip and I expressed the earnest desire that whatever you told me turned out to be true, I expect you'd be pretty precise.
Saddaam isn't the first guy to field test this, btw, so if you're thinking of condemning me for favoring torture, go ahead. You lie. You know you lie.
11.12.2008 3:54pm
Soronel Haetir (mail):
My problem with the torture works/doesn't work arguments is that everything I've seen says that such techniques are at least somewhat likely to extract both true and false information. Some of those false things are going to be absurd, "I killed Jimmy Hoffa", but others are not going to be so apparent. "We have people in town Y in Africa" which will divert resources from town X where the real danger is.

In the ticking bomb senario does anyone really think someone couldn't tell enough lies that whoever is looking for the bomb will be driven to distraction looking under every rock just like they would be anyway? Unless there is some secret method for producing truthful information on a rapid basis I honestly have a hard time seeing the ticking bomb as a good benchmark. Realistic senario, perhaps, but not a good benchmark for assessing information extraction.
11.12.2008 4:01pm
Richard Aubrey (mail):
Soronel.
I don't want to get into techniques--weak stomach--but there are ways, including not letting the vic know what you know, exactly, while interrogating a colleague elsewhere and cross-referencing the answers.
In addition, sometimes people can get too, um, distracted, to have the attention necessary to make something up. And "ticking" can cover a couple of days, although if your colleagues know you've been got, they can change some plans.

Something occurred to me recently. One interesting example of the silent nocturnal canine is the lack of public followup on the Amman bombing that didn't happen.
Google Amman terror bombing trucks. The amount of stuff involved, including poison gas, and the potential casualties, were both astonishing.
Nobody, afaik, has ever suggested Jordan had poison gas, and nobody has publicly suggested where it came from, or even suggested publicly that there was any reason to ask. It just...was there.
Now. How do you think the Jordanian security guys busted this? Not much interest in that,either, publicly. What it it had included torture? Just for sayin's sake. What if?
11.12.2008 4:19pm
Anderson (mail):
Sifting through John Moore's half-truths -- it's remarkable how the "tough guys" can be so naive -- here's one gem I can't leave on the sand:

What you won't find many of is interrogators trained in the use of coercive interrogation (such as water-boarding) who have used it against enemies, who will say it doesn't work.

Right. "I tortured people, thus violating international law and placing myself at risk of prosecution and life imprisonment, and you know what? It didn't even work!"

I'm very surprised we haven't heard anyone say that.

... If torture works so well, and if waterboarding is as inoffensive as commenters like to suggest, then why can't the police use waterboarding routinely? No harm, no foul, right? I'm sure we'll solve lots of cases.

I noticed a while back that Frederick the Great's jurists were very upset when he abolished judicial torture, because how could they get convictions now? You torture a guy, he confesses, end of case.

Modern investigative procedure begins with the abolition of torture and the consequent need to find out the *truth*, not just secure a confession.
11.12.2008 4:51pm
Richard Aubrey (mail):
Anderson.
Nice segue. Didn't work. Not talking about court cases.
Try again.
11.12.2008 4:59pm
John Moore (www):
What a strawman. Anderson writes:

... If torture works so well, and if waterboarding is as inoffensive as commenters like to suggest, then why can't the police use waterboarding routinely? No harm, no foul, right? I'm sure we'll solve lots of cases.


I have clearly answered that question. Have you read the thread? I never said water-boarding was inoffensive, but it does not cause permanent physical damage and does not involve long term pain or fear. Why don't police use it routinely? Because, OBVIOUSLY, in the US we have a judicial system for normal criminal matters. Duh.

Now, on your other point, would you care to explain why anyone should believe that torture and coercive techniques don't work to extract important information? It is as if this is another binary question. In reality, interrogation, coercive or otherwise, "works" to varying degrees based on all sorts of circumstances. Police know this. Military interrogators know this. Why don't you?

It is certainly obvious that increasing coercion, on some subjects, will produce more information more quickly. If you can't refute that, you don't have an argument at all.
11.12.2008 5:01pm
eddie (mail):
Finally an honest admission: Laws can disrupt efficient action.

So let's cut all of the other crap regarding whether this is war or not or whether torture works or not.

We have come full circle as a civilization:

In a world where so much is so blurry concern about humanity or legality. Might makes right. The only law is was I am able to do to survive.

Let's not talk about morality or law anymore, okay. Because there can be no rational discussion when there is nothing but force. Disguising such weighty arguments as merely cost benefit analysis confirms the amorality/irrationality of this whole discussion thread.

The torturers and war is everywhere and forever people claim that there "reason" is self-preservation. This is not "reason"; this is the "law" of the jungle.
11.12.2008 6:11pm
Elliot123 (mail):
"In the ticking bomb senario does anyone really think someone couldn't tell enough lies that whoever is looking for the bomb will be driven to distraction looking under every rock just like they would be anyway?"

What stalwarts here thinks they could do that while hanging upside down over a barbeque pit? Raise your hands. For how long?
11.12.2008 6:35pm
Richard Aubrey (mail):
Elliot.
Or a family member.

And, Eddie. Nobody is talking about the morality of it because that wasn't the question. The question is the efficacy and the potential cost of choosing one path or another.
But your faux outrage was sure cute.
11.12.2008 7:14pm
frufru:
If torture were illegal it’d be used as a last resort, to prevent a ticking bomb from going off, let's say with a straight face, and the sentence (IANAL) in those circumstances would be: a stern look from the judge, a medal, two girls. OTOH if torture were legal then schmibertarians would discover a ticking bomb once a week.
11.12.2008 7:31pm
Anderson (mail):
Why don't police use it routinely? Because, OBVIOUSLY, in the US we have a judicial system for normal criminal matters.

...?

You say that torture works, and that it's more effective than interrogation, but then we're supposed to be consoled that "we have a judicial system"?

Sequitur? Non.

What stalwarts here thinks they could do that while hanging upside down over a barbeque pit? Raise your hands. For how long?

Take a look at Darius Rejali's "5 Myths About Torture" if you want to see what someone who actually studies torture comes up with:

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

Read the whole thing. Read up on torture. Reality turns out to be different from "24" and the Bond movies.

Note: Mr. Aubrey, the Gestapo turns out to have been more "humane" than you evidently prefer to think. Sorry.
11.12.2008 8:27pm
Elliot123 (mail):
"Take a look at Darius Rejali's "5 Myths About Torture" if you want to see what someone who actually studies torture comes up with:"

Interesting quote. So, how many folks here think they would hold out hanging over that barbeque pit? This is a situation where you live if you talk, not where a confession damns you. If it's so unusual to cave in, surely someone here is torture proof. Help us out, we can all learn from you. Hands, please? (Full disclosure: My hand isn't raised.)
11.12.2008 9:47pm
byomtov (mail):
You lie. You know you lie.

Exactly what lie did I tell?
11.12.2008 9:49pm
John Moore (www):
Anderson

You seem to be purposefully obtuse. The argument is about use the treatment of alleged unlawful combatants captured outside the United States. Hence the answer to your "question" about why police don't use torture (in the US) is obvious and also irrelevant.

As to those who claim that the argument is based purely on efficacy and not morality, I'd suggest they pay closer attention. They are throwing out yet one more straw-man.

Nobody in this situation is advocating coercive interrogation willy nilly. Everyone understands that it, like many other actions in war, present moral problems (did you see my point about torture vs. inadvertent civilian casualties from bombing?).

However, some are arguing for an ABSOLUTE restriction on torture. I'd suggest they are extremists who picked on particular wartime practice and elevated it far, far above other techniques with even worse outcomes. That is illogical.

As for the "make it illegal, and the good guys will still use it in the ticking bomb scenario, when we need them too" - NONSENSE. Again, black and white thinking. The good guys never have perfect information. Furthermore, they believe in the rule of law. Asking them to break a law (and face war crimes trials or whatever) to save YOUR butt is outrageous.

"But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse" - well, let's just say people have learned a lot since then. The torture used by North Korea, North Vietnam and Saddam was more effective. The US use of water-boarding, which hardly compares to what you just described, broke, among others, Khalid Sheik Mohammed - the mastermind of 9-11 and someone with critical information not available elsewhere. And this guys is a religious fanatic, not the sort to give easily to torture.

Do you really want to give the planner of 9-11 (and other big plots) 5th Amendment rights and treat him like an ordinary criminal? Sure, you may get a conviction on him (although I'm not sure how), but how about the plots he had information on that you now never find out about.

Oh well, you can feel moral and superior and untainted as thousands of your fellow citizens die as a result. And make no mistake, hobble this war too much, and that is exactly the stakes. Had the Al Qaeda plot of August 2006 not been stopped (by counter-intelligence means), there would have been many 747's exploding over highly populated US cities - at the same time. That was the plan, and they were well along towards doing it, using liquid explosives.

Do you think it is a mere accident that we have broken up so many Al Qaeda plots? Do you think the CIA has mind readers or some other magic to get the detailed information we have heard about these organizations?
11.12.2008 9:57pm
Soronel Haetir (mail):
Again with KSM there are details we still don't know that would change things greatly depending on where the truth lies. We are told he was water boarded for 90s or so, fine. We are also told that he spilled regarding truthful things. Finally we are told he confessed to totally implausible things. How many in-between cases are we not told about? And how long did separating the true from the false but plausible take? We've had KSM for years now, much different than a situation where you have 6 to 48 hours. And that 48 is being extremely generous for a ticking bomb senario. The further out a possibility is the less willing to use extreme methods we should be.

What I find more interesting in this field, is there anything chemical in this arena that actually works? Hell, get the suspect drunk and talking. I have far less trouble with such means of making the suspect's brain work against them rather than trying to jolt fear and pain. Chemical means seem like they ought to have less effect on the information extractor as well since they don't require that people be immune to the suffereing of others.
11.12.2008 11:46pm
Richard Aubrey (mail):
by.
The "lie" issue was a preemptive strike, so to speak. In speaking with liberals, it is not uncommon to be accused of favoring some unpleasant thing when you are merely pointing it out. So I figured I'd get my point in ahead of time.

During the Viet Nam war, the US used gasoline vapors to clear tunnels. Explosion wave fronts at the opening of the tunnel could be stifled by a succession of right angles. However, if you get the gas vapor through the tunnel before lighting it off, it works just fine.
Charlie started bringing civilians down as shields/hostages. That worked fine--for Charlie. Then the US switched to tear gas. Run the folks out and separate them. The libs went nuts. Chemical warfare!!!! and so forth. Real reason was, no dead civilians to point at, and cleared tunnels. A loser two-fer.

So I foresee something of the same if sodium pentothal or some other tongue-loosener is used. No tortured bodies to point at, and useful intel by the bucketload. It is not to be stood.
I have had sodium pentothal as anesthetic for surgery twice--they like to keep you mellow if they're not putting you all the way out--and am embarrassed at some of the things I said. I could easily have been led to any subject the OR staff wanted.
But after a quarter of an hour I was dandy. That would never do for libs.
11.13.2008 4:28am
Anderson (mail):
This is a situation where you live if you talk, not where a confession damns you.

If anyone's curious, "the threat of imminent death" is one of the definitions of "torture" at the Torture Act, 18 U.S.C. s 2340.

Even John Yoo ruled that mock executions -- burying someone alive for a little while, for ex -- were beyond the pale, given the plain language of the Act.

It continues to be interesting, in a pathological kind of way, how many people *insist* that torture *must* be more effective than interrogations, without any evidence other than their own emotions (and the allegations of U.S. torturers who conceal details, erase videotapes, and have every motive to lie about the value of their work).

That does make it easier to understand how Cheney &Addington could persuade themselves so quickly that we needed to be torturing people.
11.13.2008 8:16am
Richard Aubrey (mail):
Anderson.
Wrong again. I know of nobody who says torture must be more effective.
Point is, if it's effective at all, the choice to use it or not has a moral load.
Denying its effectiveness relieves you of a moral decision.
But what if you're wrong and it does involve some efficacy?
11.13.2008 8:57am
byomtov (mail):
The "lie" issue was a preemptive strike, so to speak. In speaking with liberals, it is not uncommon to be accused of favoring some unpleasant thing when you are merely pointing it out. So I figured I'd get my point in ahead of time.

Really, the only excuse for this is that you suffer from severe paranoia, and therefore can not be held accountable for much of what you say. That would account for your interest in torture as well.

I'd suggest that you quit spending time here and consult a good psychiatrist.
11.13.2008 9:43am
Richard Aubrey (mail):
by.
It's not paranoia. It's experience dealing with liberals.
There's a difference. In origin. The result, expanded prudence, is the same.
11.13.2008 11:02am
Richard Aubrey (mail):
Crap. Something wrong with the keyboard.

Anyway, on this very same thread, right here, I was accused of admiring the Nazi tactics. So, I don't even have to go very far to demonstrate that...you're wrong.
It's experience.
I'd suggest you consult a reading teacher.
11.13.2008 11:04am
PLR:
Really, the only excuse for this is that you suffer from severe paranoia, and therefore can not be held accountable for much of what you say. That would account for your interest in torture as well.

The harshness of that comment seems mitigated by its apparent accuracy.

There is no evidence that any Gitmo detainee knew of a ticking bomb, and a conspiracy that is weeks or months from fruition is not a ticking bomb.

But if one believes torture is cool, then one should be ready to carry it out for the good of humanity. So torture fans, you have a shackled foreigner in front of you. He isn't talking, but he was turned over to the Army a week ago by some Pashtuns who said "Can we have our reward money now?" Or maybe he is talking, and he says he makes rugs.

But maybe he knows something. The tool chest is in the CO's office, have at him. (This shall not be deemed to constitute legal advice).
11.13.2008 11:48am
Richard Aubrey (mail):
PLR.
Actually, it seems a number of folks here have decided that the accusation--which byomtov seemed to think hadn't happened when it had, right in front of his very eyes--is a better way to deal with the question than actually, you know, dealing with the question.
Not a new technique.
You will also note that I dealt with the chemical issue. I favor it, but see liberals being even more angry about it than they are about torture. With torture, at least, you could beat up on George Bush. With chemicals...hard to make a case for its raging immorality without being laughed out of the room.
11.13.2008 12:08pm
byomtov (mail):
I'd suggest you consult a reading teacher.

Richard Aubrey,

What others said or did not say has nothing to do with whether I lied or not. It is you, not I, who doesn't understand English.
11.13.2008 12:31pm
Richard Aubrey (mail):
by.
You said I was paranoid because I had anticipated the accusation that I favored (or "admired") something I had, instead simply pointed out. Since it had already happened, right in front of you, accusing me of paranoia, which presumes whatever it is doesn't happen, hasn't happened and won't happen means you were incapable of reading the accusation that I favored Nazi techniques.
It doesn't fit the accusation of paranoia to anticipate something which has already happened and is likely to happen again.
And the preemptive was conditional, addressed to all posters. If you accuse me of favoring this or that when I merely point it out, you lie.
Reading teacher, by.
11.13.2008 1:21pm
Elliot123 (mail):
"That does make it easier to understand how Cheney &Addington could persuade themselves so quickly that we needed to be torturing people."

Still waiting for someone here to let us know they are torture-proof, since we're told the French are really, really good at withstanding torture, and torture doesn't work. Is everybody here more of a wimp that the average Frenchman?
11.13.2008 3:37pm
CharleyCarp (mail):
I didn't say that torture was ineffective. Want a confession? You'll get one. Want a story? You'll get one. Maybe it'll even be true.

Then again, maybe it won't. In the ticking bomb scenario, I guess that's reason enough to go everywhere the prisoner tells you to look for the bomb.

But we're long past any of that, with Gitmo prisoners. After 6 years in jail, whatever bombs have long since gone off -- or not. And no it's just bedwettery run amok.

John Moore -- when you say "[l]ately, after reacting to SCOTUS actions, the administration is in the process of adjudicating the status of detainees. Naturally this is not enough" to what are you referring? Perhaps the pending district court litigation? Because if you're thinking of something else, you are mistaken.
11.13.2008 11:27pm
Richard Aubrey (mail):
Charley.
Are you suggesting the prisoners in Gitmo are now being tortured?
Or are you suggesting that simply being in Gitmo is torture?

You need to keep up. The NYT, now that Obama's been elected, has discovered that these guys are really bad, based on solid intel, and there are practical and legal problems associated with doing anything else with them.

So it's all good, now.
11.14.2008 8:14am
John Moore (www):
@CharleyCap:

Coercive interrogation techniques including torture are effective for counter-intelligence purposes, as been demonstrated for thousands of years. As I posted far above, the use of torture for punishment or to obtain false confessions is a different class of usage than CI.

As to my comment about "not enough" - I mean that NOTHING short of giving full US civilian justice system protections to the detainees is enough for the (often extreme) critics of the administration's actions.

In accord with Richard Aurbrey, I would comment that the whole problem is mute. If the new administration wants to use those techniques including torture beyond water-boarding, there will be no outcry - certainly not by the press, so why worry.

In other words, I think the hysterical anti-Bush climate, whipped up by his opponents (including leakers from CIA and State, and of course the main stream media) has made it almost impossible to have a rational discussion on the issue. Once Obama is in, this hysteria will subside, as will the issue. I believe that many posters on VC are caught up in the hysteria, hatred and anger of that media-driven mob mentality and that drives their demands for impossible perfection of our war-fighting processes.
11.14.2008 3:45pm
Richard Aubrey (mail):
John Moore.
To emphasize your last sentence: Once Obama is sworn in, there will be fewer complaints that this is happening. Not that it isn't happening, but since there will be few hereabouts interested in beating up on Obama, these so-called atrocities, if they exist, will simply be ignored, or, as with the NYT, necessary against our enemies.
There is no double standard here. Bush bad, any dem good.
11.15.2008 11:44am
Tatil:
How about those that got released, because it turns out they were falsely accused, too insignificant or whatever:
11.15.2008 12:29pm
qqqqqqq (mail):
Judge orders release of 5 terror suspects at Gitmo.

Because, uh, there's no evidence they were involved in anything, apart from thin brew from one witness whom they can't confront. Given the record of inaccuracy in the other pickups, and the overall incompetence of the entire war effort, guilty until proven innocent would seem more wisely applied to administration appointees. We've spent 8 years trying aggressively to reduce consitutional protections to where they resemble those of a banana republic. The head of state gets to decide based on classified evidence if a U.S. citizen can be held indefintely without charges or hearing, and waterboarded. Posner is clearly fine with that. One would have thought something about power corrupting might have gotten through, but apparently not.

Hurrah for symbolism.
11.20.2008 2:22pm

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