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Military Commissions and National Security Courts After Guantanamo

My colleague Professor Amos Guiora has just written an interesting essay about what to do with the Guantanamo detainees. Here is an abstract:

In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used to label detainees including "enemy combatant," "illegal belligerent," and "enemy belligerent," all fail to define the rights such individuals should be granted. Admittedly, this process has been made more difficult by a continued inability--perhaps unwillingness-- to define the conflict in a consistent manner. Is this a war? Is this a "war on terror"? Is this police action? Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees--how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a "hybrid" of both. To that end, I recommend that the appropriate term for post 9/11 detainees is "individuals suspected of involvement in terrorism." This definition adopts aspects of both the prisoner of war and criminal law paradigms, thereby creating what I have called a "hybrid paradigm." The hybrid paradigm seeks to balance--or maximize--the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid "domestic terror court" that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services. A properly constituted domestic terror court--comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights--is the proper starting point in moving forward with post 9/11 terrorist prosecutions. The proposed hybrid paradigm will ensure both the state's obligations to keep intelligence and matters of national security confidential as well as the defendant's right to a fair trial.

You can find the full paper on SSRN here. Sounds like an interesting idea to me.

martinned (mail) (www):
Unfortunately, the paper cannot be downloaded (yet). It does seem interesting, though, since clearly the US Congress has much less freedom to tailor procedures for such detainees than, for example, the UK Parliament. (At least, once they are judged to be covered by Constitutional guarantees.) So assessing the best way to design procedures in this field should be an academic gold mine for years to come.
11.13.2008 12:36pm
Oren:
I can't read the paper either but it seems that he dodges the hardest part of the problem in favor of solving the easy parts. To wit, he does not explain how we decide whether a suspect has his case heard in the hybrid system versus the traditional system. IMO, that's the most crucial component.
11.13.2008 12:38pm
Melancton Smith:
I guess I'm just a kooky absolutist, but I thought some Rights were 'Unalienable'. Meaning the pre-date any Constitution and cannot be taken away.

Oh and they aren't 'granted'. Only respected or disrespected.
11.13.2008 12:40pm
MarkField (mail):
I'm puzzled by the rush to design a new system without actually trying the existing one at least once.
11.13.2008 12:52pm
martinned (mail) (www):
@Melancton Smith: Yes, but those rights are limited by reasonable exceptions, such as the "Fire!" exception to the First Amendment. [Insert suicide pact reference here.]

Since in the UK parliament is sovereign, they can make that assessment based on changed circumstances, whereas in the US the limits of rights are defined in case law and therefore much more difficult to adapt. That is usually a good thing, but in this case, the argument for some sort of hybrid procedure seems reasonable.

BTW, look at the European Convention on Human Rights (as transposed into UK Law as the Human Rights Act):


Article 15 -- Derogation in time of emergency
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
11.13.2008 12:57pm
Richard Aubrey (mail):
Does the proposed in-camera review of classified docs allow the defense attorneys to look at them?
11.13.2008 1:16pm
wfjag:
Professor Guiora is fundamentally wrong in asserting that the detainees fail to meet the standards for PWs. The issue underlying the claims of classification as "enemy combatant," "illegal belligerent," and "enemy belligerent," etc., is whether the detainees were entitled to the full protections of the Geneva Convention on PWs. Despite meeting none of the criteria set in the GC, the US Sup. Court held that they are. So, that issue is resolved.

I believe this makes the solution fairly simple. If it is alleged that any of the detainees committed a crime subject to the jurisdiction of a US or foreign court, then such detainees can be tried for those crimes. This does not require releasing custody, since most nations allow for trial in abstensia, and video teleconferencing allows such detainees to participate in their own defense even if not physically present. Assuming a conviction, the Dept. of State will have to work out the details about when the convict is released to another nation.

However, as PWs, whether or not the GC applies to them, the detainees can be held until it is determined that they are no longer a threat to the US or coalition or allied nations. Being a combatant is not a crime. However, being a combatant for a belligerent hostile to the US is sufficient in customary international law to allow detention until such detainee no longer poses a threat. This does not require a trial of any kind. If Congress wants to set up a formalized administrative body to handle the matter, it can do so.

It is foolish to set up some "hybrid 'domestic terror court'", which court itself may violate the GC on PWs.
11.13.2008 1:23pm
martinned (mail) (www):
@Richard Aubrey: Thanks for reminding me. That is the number 1 thing the US should copy from the UK: Special advocates.
11.13.2008 1:35pm
jimzinsocal (mail):
So where is the new thinking in Guiora's piece?

Hasn't it been a conclusion [that we have attempted to speak to] that these characters are indeed a hybrid?
Not exactly this or not exactly that? Wasnt that the Administration's problem?
11.13.2008 2:05pm
Anderson (mail):
Does the proposed in-camera review of classified docs allow the defense attorneys to look at them?

That would be my question as well.

If we're talking about condemning people to death on the basis of evidence they're not allowed to examine, then thanks but no thanks.

There are plenty of other countries where "courts" do just that, and people who require that kind of "security" should feel free to move there.
11.13.2008 2:15pm
PeterWimsey (mail):
The term "individuals suspected of involvement in terrorism" is both overinclusive (including Timothy McVeigh, for example) and, more importantly, too wordy to catch on. I suggest they be called "Criminals of War." Not to be confused with war criminals.
11.13.2008 3:10pm
Richard Aubrey (mail):
Anderson.
Okay. As long as you can prove Lynn Stewert was sui generis and the defense attorneys won't be spilling classified docs by the boatload, this seems okay.
But the condition is onerous, no?
11.13.2008 3:14pm
Elliot123 (mail):
"In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States."

He seems pretty certain about that.
11.13.2008 3:19pm
Cactus Jack:
Richard -

I don't follow your references to Lynne Stewart here. I understood that she was convicted of passing information from her client to alleged terrorists and terrorist organizations, not that she was misappropriating classified information from the gov't or court.
11.13.2008 3:25pm
Dilan Esper (mail) (www):
I'm puzzled by the rush to design a new system without actually trying the existing one at least once.

I'm not puzzled at all. We tortured a bunch of detainees. THAT's the "classified information" that everyone is worrying about disclosing.

These proposals are nothing more than an attempt to ensure THAT information isn't publicly aired at a trial.

Indeed, although I would very much prefer that we simply try everyone in federal district court, I would suggest that the poison pill for any of this bills would simply be a provision that interrogation techniques shall not be considered classified information in any trial in the special courts.
11.13.2008 3:27pm
Eli Rabett (www):
This was a useful solution in 2001, however, given how most of the prisoners were captured and treated it is not so easy to unmake this procrustean bed.
11.13.2008 3:41pm
Anderson (mail):
I'm not puzzled at all. We tortured a bunch of detainees. THAT's the "classified information" that everyone is worrying about disclosing.

I'm very much afraid that you're right.

Mr. Aubrey, I appreciate the problem of genuine secrets, but the problem here is that the government is asserting the right to put people to death. Against which, there's the vague threat of undisclosed, incalculable security problems.

I think the feds have to choose their priority. Let the court tell them that it's absolutely not going to execute anyone where the evidence supporting conviction can't be disclosed to the defendant -- who, remember, MIGHT be able to refute that evidence, if he only knew what it was.

If it really matters that much to them, then fine, they've made their choice.

I would be fine with requiring defense counsel to be security-cleared and perhaps even JAG's, provided they have the needed resources &aren't dependent on the prosecuting authority for promotion. But the UK "special advocates" apparently can't disclose information to the accused, who is the one who might be able to refute that information. I don't see how that works.
11.13.2008 4:30pm
martinned (mail) (www):
@Anderson: The purpose of the special advocates is first and foremost to speak on behalf of the accused when the court decides whether the information is legitimately classified. In the US, the government can claim state secrets and that is pretty much it.
11.13.2008 4:33pm
martinned (mail) (www):
Here is information about the Special Advocates system from the UK Attorney General's webiste.

I think this case, about the release of UK government documents concerning Guantanamo detainees was discussed here on Volokh as well. It's a good example of the division of labor between the special advocates and the plaintiff's ordinary barristers.
11.13.2008 4:43pm
Richard Aubrey (mail):
Jack. I know what they got Stewart for. My point was, given her predilections, if she'd had classified docs put in front of her, would she have kept her big boca shut? Of course not.
She's on the other side.
So, if we have the hybrid procedures, how many defense folks would we see showing up with the primary object of passing on classified material and the secondary object of allowing the perp to be convicted so he can be a martyr?
11.13.2008 4:55pm
Oren:
Richard, very small price to pay.
11.13.2008 6:15pm
Richard Aubrey (mail):
Oren. You're back. Nice to see you. Now, about the mandatory community service you were going to oppose....

Small price, I suppose, given that there is an infinite number of soldiers who can be sacrificed for it. Right.
11.13.2008 6:58pm
John Moore (www):
@wfjag

is whether the detainees were entitled to the full protections of the Geneva Convention on PWs. Despite meeting none of the criteria set in the GC, the US Sup. Court held that they are. So, that issue is resolved.



Another case of SCOTUS worship.
11.13.2008 7:02pm
John Moore (www):
How will evidentiary issues be dealt with - not regarding classified information - but about the difficulty in meeting US legal system evidentiary rules in war circumstances?
11.13.2008 7:04pm
martinned (mail) (www):
@John Moore: I guess that depends on what you mean by "evidentiary rules". Things like the rule against hearsay serve mainly to protect the jury against its own stupidity. (Or rather, to protect the defendant against the jury's stupidity.) So in certain circumstances such a rule might be relaxed. But in the end the evidence still has to be convincing. How convincing depends, I guess, on whether the purpose of the whole thing is to pass some kind of criminal judgement, or simply to decide whether this person is still an imminanent threat against the United States.
11.13.2008 7:28pm
John Moore (www):
@martinned

I think that's a fair view. Since I view the Guantanamo situation as primarily (but not wholly) a mechanism to protect against dangerous people, a system which takes that as its goal is fine (although imminent danger is too strong a standard - leave out the word imminent).

There is also the question of how we deal with someone like KSH. Do we use Nuremberg style justice to try him? I don't know much about the procedures there, but the goal was the same: adjudicate guilt and punishment for war crimes.

I do not think it appropriate to try someone like KSH in regular court for US crimes (say, terrorism leading to death). The reason is that his activities did not take place within the US and his actions were much closer to that of a leader of an enemy country engaging in war crimes than of a criminal in our society.
11.13.2008 8:09pm
martinned (mail) (www):
@John Moore: The reason why I wrote immanent is that generally our legal tradition seriously frowns upon jailing someone for something they might do in the future. There are plenty of battered wives who can attest to that. If we're going to jail terrorists for what they might do in the future, why stop there?

I don't see your problem with trying people in US court. Why should it be extra difficult to prove guilt due to the fact that "his activities did not take place within the US"? For normal crimes, that would be true, because law enforcement authorities are more constrained outside the US. But when it comes to terrorism, US intelligence agencies have been doing pretty much whatever it took, so that can't be the problem. Is it a problem of getting certain witnesses into the witness box? In that case, teleconferencing might be a solution. Sure, there will be evidence problems, but they won't be caused by the international nature of the crime as such.

As for KSM being something like "a leader of an enemy country", do we really want to give him that much credit? And even if we did, there wasn't really that much difference between the Neuremburg and Tokio courts and a normal court, except that the former represented a compromise between the different victorious countries.

KSM can't be tried for war crimes, since he didn't commit any. (Even if he did, the normal US courts would still have jurisdiction, btw.) The whole list is here, in the Rome Statute of the International Criminal Court. Even though the US aren't a party to it, it is still the most authoritative, and in fact only, legal statement on the definition of different war crimes. War crimes are in art. 8, where sections 2 (d) and 2 (f) make clear that the article does not apply to something like 9/11.

The only crimes he can be tried for are in fact normal national crimes, most importantly conspiracy to commit 3000-odd counts of murder. Add to that terrorist intent, and you still have a normal national law crime.
11.13.2008 8:35pm
Oren:

Oren. You're back. Nice to see you. Now, about the mandatory community service you were going to oppose....

You were right about that one. Now that I've read the proposal (on the webpage) it is nothing like the moderate voluntary plan that I had imagined. It is, in fact, just about as horrible as the parade of horribles previously suggested. Of course, I didn't know that at the time. Now I do, and so there's an unqualified repudiation of the plan for you.

And now back to your regularly scheduled programming.
11.13.2008 9:38pm
John Moore (www):
@martinned

The reason I object to imminent is that active members of an enemy organization may not present an imminent threat, but they clearly present a serious threat.

I've tried to explain my objections to using normal US court (beyond the obvious classified information problem). I'll try again. One problem is that the evidence is likely to be thrown out as coerced, or hearsay, or more likely, just improperly obtained. Another is that the intelligence agencies are not in the business of gathering evidence or preparing a prosecution, but rather of gathering intelligence and taking pre-emptive action. This is very different from our normal justice system.

The folly of using the criminal justice system was shown in 9-11. The FBI maintained a high wall between counter-intelligence and criminal investigation - largely to avoid contaminating evidence. The result was that information which very well may have prevented 9-11 was not gathered in the Zacarias Moussaoui case.

Another reason I have pointed out before is that our judicial system was designed and has evolved to operate within our country. In other words, with police, prosecutors and defense attorneys operating within the bounds of our society. This is not even close to a match with the case of KSM or there other GTMO inhabitants.
11.13.2008 9:58pm
CharleyCarp (mail):
Creating a special court for the handling of classified information is killing a gnat with a hammer. Classified information isn't what's wrong with the Military Commissions, or with GTMO generally. Men indicted before Commissions are provided with appointed defense counsel -- uniformed military officers. It's a calumny to suggest that sharing all classified evidence -- especially exculpatory evidence -- with these men and women presents any kind of security risk at all.

The principal problem with the Commissions is that they allow admission of evidence obtained through coercion (although not torture). A special court that does the same is no cure. One that imposes rules of evidence consistent with our heritage would result in more acquittals than the government is willing to risk.

The proposal doesn't provide any meaningful relief for the many many GTMO prisoners who have not committed crimes of any kind, or engaged in hostilities.
11.14.2008 12:07am
Benjamin Davis (mail):
Amos Guiora's piece can be found at the Northwestern Law Journal Colloquy at here This is the fourth piece on the topic starting with Greg McNeal (here), myself (here), and Colonel Morris Davis (here)over the past three months at the Colloquy. National Security Courts are just a fancy name for a Third Class Process for Foreigners in the form of a "tribunal d'exception" something that has been tried in many countries and is a mechanism for guaranteeing judicial abuse of the star chamber kind. Those who say this is all about torture are absolutely right. The other shoe to drop in this discussion is the need for criminal prosecution in U.S. domestic courts of U.S. high level civilians and generals for torture and cruel inhuman and degrading treatment for what they ordered. Cleaning up the mess is not just about judicial process for foreigners who are alleged to have committed war crimes or other domestic law crimes. It is about criminally prosecuting those who ordered our soldiers to do these horrendous things. Some of those soldiers have been convicted and served time for those things they did. Those soldiers are serving life sentences for the crimes they did at the behest of the higher ups. There is no reason why shit can not run uphill to get those top dogs for betraying American law and American international obligations in a policy of cruelty that has been documented in so many different ways over the past five years.
Best,
Ben
11.14.2008 12:19am
John Moore (www):
Benjamin Davis,

I'm glad you're not responsible for our national security.

Obviously you are oblivious to the realities of warfare and a worshiper of process over good sense. As for documented cruelty, there has been very little. The most significant was Abu Ghraib, which was an aberration not approved at high levels, and those responsible were punished.

Perhaps you should consider the real cruelties here - those of religious fanatics who murder innocents by the thousands and hope to kill many more. Those of Iraqi vs. Iraqi, which was happening long before we went in there. Those of suicide bombers of civilians around the world, and those of the beheaders of innocents.

Your comment is sickening in it's horrible lack of balance.
11.14.2008 1:10am
Litigator-London:
Control Orders in the UK are a device to provide for the near house arrest of those who are suspected of terrorist activity but against whom there is insufficient evidence to proceed to a criminal trial or an inability to deport them (if non citizens). They are a civil and not a criminal remedy. All the cases proceed in the Administrative law list of the Queen's Bench division.

The Special Advocate procedure has some advantages for the state, but it is causing problems, particularly with the inability of the Special Advocate to take instructions from the client. A number of cases where 1st instance judges have concluded that the procedures are infringing the rights of defendants are on appeal as I write and some cases will end up before the ECHR.

What the Special Advocate procedure cannot resolve is the need to prove a case to the criminal standard to a jury in a criminal court. Our courts will exclude any evidence obtained by torture, inhuman and degrading treatment, or other oppression. Which is why all police interrogations of terrorism suspects are videotaped in their entirety and the custody facilities are under constant CCTV surveillance - all of which materials are documented and disclosed to the defence. There have still been many successful prosecutions.

The problem is that the Bush Administration never intended to bring prosecutions in the ordinary way. They thought Guantanamo was a legal black hole where they could do what they liked. What might well have been achieved by proper respect of the rights of those detained has been poisoned by misconduct. So does the USA uphold the rule of law, and where necessary accept that some persons who could have been found guilty will go unpunished, or does it dismantle the rule of law in favour of kangaroo courts?

Neither alternative is attractive - but the Administration brought the problem on itself - largely because it did not take competent legal advice.
11.14.2008 5:41am
martinned (mail) (www):
@John Moore:

One problem is that the evidence is likely to be thrown out as coerced, or hearsay, or more likely, just improperly obtained.

That is not an objection to using US courts, but to using ordinary rules of evidence. Like I already said, amending some of the rules of evidence is probably going to be necessary. I specifically mentioned the hearsay rule earlier as something I don't think is very essential to a fair trial. The same goes for the rule against coercion, as long as there is a line drawn somewhere so that serious torture is still out, and as long as the court is made aware of what is done, so that this can be taken into account when the reliability of the evidence is assessed.

As for improperly obtained, in another thread someone kept bringing up US v. Verdugo-Urquidez, which explains that 4th amendment rights, unlike for example their 5th amendment counterparts, don't apply to US government conduct outside the US against non-citizens.

The example you give about the pre-9/11 investigations again goes to rules of evidence.

Generally, I don't see why intelligence agencies couldn't work together with a (special) prosecutor to prepare a prosecution in the same way the police do. You go over what you have on someone with an eye to the rules of evidence and what would most likely convince a judge/jury.

Finally, I'd like to remind you that there are quite a few real "extraterritorial crimes" on the books, i.e. crimes that have even less of a link to the US than KSM's do. (Off the top of my head, it is a felony to travel abroad to commit child prostitution, and I'm not even sure whether it matters what the age of consent is in the country you're traveling to.)
11.14.2008 5:46am
Benjamin Davis (mail):
"Obviously you are oblivious to the realities of warfare and a worshiper of process over good sense."

Look,
Over the past nearly five years I have read persons writing some kind of line like this line. The shorthand for this is the ends justify the means. This line of argument angers me because it always ends up with an image of America being able to act beastly because America thinks it needs to act beastly and we - like little lemmings - are just supposed to go along with it. I never signed up to have my government torture people. And if my government has done awful things to people I want to know about it and prosecute those in my government who did it.

"The most significant was Abu Ghraib, which was an aberration not approved at high levels, and those responsible were punished."

This line of argument at this date is an argument from a person simply in denial. Those punished are the low level grunts not the people who ordered. My god, there is testimony from the Secretary of State and the Legal Adviser to the Senate Armed Services Committee admitting to sitting in meetings in the White House in which methods of interrogation that are torture were approved. If you think for one minute that those grunts are the responsible ones you have little respect for the chain of command. Grunts do not improvise.

"Perhaps you should consider the real cruelties here - those of religious fanatics who murder innocents by the thousands and hope to kill many more. Those of Iraqi vs. Iraqi, which was happening long before we went in there. Those of suicide bombers of civilians around the world, and those of the beheaders of innocents."

Yes there are bad people in the world. But, please help me with this, at what point do you recognize that 9/11 had nothing to do with Iraq and that we started that war on false pretenses. I was listening to the drumroll. I saw the bipartisan arguments leading up to it. I saw the rush to hit Saddam. So when you count the dead and injured please remember the civilians who are dead because of what we decided to do.

How many people in the Arab world have to die before the 3000 persons who died on 9/11 (including an old friend of mine I would add) are going to be expiated in your head?

What is sickening is the unending willingness to try to downplay the evil we have done in systematizing and industrializing torture as part of America's arsenal. I did not sign up for America being the McDonald's of torture and borrowing the playbook of techniques from the communists and others that we fought for decades. That kind of America is not a city on a hill. It is a city in the gutter when we become torturers and think it is OK.

Best,
Ben

Best,
Ben
11.14.2008 9:39am
Anderson (mail):
The other shoe to drop in this discussion is the need for criminal prosecution in U.S. domestic courts of U.S. high level civilians and generals for torture and cruel inhuman and degrading treatment for what they ordered.

Let us pray. Daniel Larison startles the reader by suggesting that America adhere to something called the "rule of law."

But libertarians and VC quasi-libertarians are against the rule of law, of course, so they will oppose any official's being indicted for their apparent crimes.

Perhaps you should consider the real cruelties here - those of religious fanatics who murder innocents by the thousands and hope to kill many more. Those of Iraqi vs. Iraqi, which was happening long before we went in there. Those of suicide bombers of civilians around the world, and those of the beheaders of innocents.

Good lord, it's Joseph Goebbels reborn. What CAN'T be justified by this kind of rhetoric?

Maybe instead of just *pretending* to rape or kill KSM's kids, we should've really done it. Why not? After all, surely it pales in comparison to the "real cruelties."
11.14.2008 9:53am
wfjag:

Another case of SCOTUS worship.

No, John. That's called a 5-4 decision with no rehearing, and a new Dem. President, a new Dem V.P. who has stated that "ideology" or "judicial philosophy" is the most important consideration in choosing people for the federal bench, and an increased Dem. majority in the Senate that will ensure that any Justices who replace any of either the 5 or the 4, will extend the reasoning of the 5 even further away from the language of the Geneva Convention on Treatment of PWs or any limits in laws enacted by Congress to "find" additional rights for the detainees.

Not "worship". "Exhaustion".

This is another reason not to create a "new" court or try the detainees, unless established crimes can be proven in federal court. Additional proceedings in the US only will create more opportunities for the 5 (and their ideological kin) to find more rights. Customary international law allows holding combatants until they are no longer a threat. Of over 460 detainees released from Gitmo, at least 50 returned to fighting/terrorist activities (since that's how many have been killed or re-captured). Pres. Obama and the Dem. Congressional leaders are trying to convince the US public that they, too, are tough on terrorism. They won't be inclined to pressure DoD to release detainees, since if they do and some of those return to fighting/terrorist activities and are killed or re-captured later, there will be considerable political blow-back on the Dems. However, if, applying the same standards developed under the Bush 43 administration, DoD releases detainees who return to fighting/terrorist activities, Pres. Obama and the Dem. leadership have political cover -- "DoD messed up using Bush 43 policies, lets hold hearings!"

So, I see no reason to create a new court to try the detainees, and less reason to give the SCOTUS another opportunity to put a political spin on the issues.
11.14.2008 10:06am
Richard Aubrey (mail):
Ben. You're too smart to believe what you are attempting to get across to the rest of us. So I think that's a straw man.

We are not fighting to even up casualties, so expiating the dead of 911 is not an issue. As you know, but hoped to distract us by going there.
The war is against violent, expanionist Islam extremism. That Iraq had nothing to do directly with 911 does not change that.
Do you have evidence that Abu Ghraib incident, from which you slid over to the subject of interrogation, hoping nobody would notice, was a matter of orders? The highest ranking individual to be punished, afaik, is the BG Karpinski, in charge of the whole mess and unable to control it.
Grunts do initiative. I was one. I was also an officer. Keeping an eye on armed adolescents who were trying to figure out ways to pass the time was part of my job.
11.14.2008 10:24am
Anderson (mail):
a new Dem V.P. who has stated that "ideology" or "judicial philosophy" is the most important consideration in choosing people for the federal bench

Well, won't THAT be just a complete change from what we've seen under Reagan and Bushes.
11.14.2008 10:32am
Anderson (mail):
Re: Goebbels, his "Total War" speech of 1943:

Enemy nations may raise hypocritical protests against our measures against Jewry and cry crocodile tears, but that will not stop us from doing that which is necessary. Germany, in any event, has no intention of bowing before this threat, but rather intends to take the most radical measures, if necessary, in good time.

Sub "radical Islam" for "Jewry" and you've got something that could be posted without raising an eyebrow at any number of blog threads. Gotta do whatever's necessary, right?

-- As a possibly relevant aside, this speech has always fascinated me by Goebbels' ability to project the Nazis' own crimes onto their enemies:

A Bolshevization of the Reich would mean the liquidation of our entire intelligentsia and leadership, and the descent of our workers into Bolshevist-Jewish slavery. * * * Behind the oncoming Soviet divisions we see the Jewish liquidation commandos, and behind them terror, the specter of mass starvation and complete anarchy.

Goebbels was well aware that liquidation, slavery, and mass starvation were precisely what Germany had brought to Russia. We even get the fantasy of Jewish Einsatzgruppen. I suppose this helped the little weasel sleep at night.

Scott Peck suggests that projection of one's own vices onto others is a characteristic of evil people.
11.14.2008 10:41am
martinned (mail) (www):
@Anderson: The point of Godwin's Law (or rather, the collorary), is that it is rarely helpful to compare someone to Hitler. So let's stop metioning Nazi Germany in this thread...
11.14.2008 10:48am
MarkField (mail):
When the discussion is torture, it's pretty hard to avoid comparisons to Nazis. If the shoe fits...
11.14.2008 11:17am
Richard Aubrey (mail):
Mark.
You could talk about the Soviets, but you'd have to put up with being called McCarthyite.
11.14.2008 11:24am
Benjamin Davis (mail):
You flatter me. I am not that smart. I am just a citizen.

"The war is against violent, expanionist Islam extremism. That Iraq had nothing to do directly with 911 does not change that."

Directly? Directly? Richard please do not leave the pregnant "directly" there leaving an impression of "indirectly" wink wink.

Even the President stated at some point in the past years that there was no connection. I hope you remember the drumroll of trying to connect Atta to Iraqi secret service in a meeting in Prague. All found out to be nonsense. Also, the testimony used by Powell at the United Nations making a connection was the testimony under torture of Al-Libbi who had been extraordinarily rendered to Egypt. More nonsense. Directly? please give me a break.

"The war is against violent, expansionist Islam extremism."
What does that mean? Who is the grunt to target - anyone who objects to the grunt being in his country because anyone who objects must be a violent, expansionist Islamic extremist? You must remember the soldier story of walking around some part of Iraq, seeing a farmer, and the American soldier asking the farmer, "Hey farmer, you seen any foreign fighters here?" and the farmer replying, "Yeah, you." Or someone who might look at the Iraq government as a puppet regime of the United States. Does that make such a person a target as a violent, expansionist Islam extremist? If you are in a foreign country and do not roll over for an invasion by a foreign coalition ("we come in peace") then you are a violent, expansionist Islam extremist? What Manichean world is this?


"Do you have evidence that Abu Ghraib incident, from which you slid over to the subject of interrogation, hoping nobody would notice, was a matter of orders? The highest ranking individual to be punished, afaik, is the BG Karpinski, in charge of the whole mess and unable to control it."

"Incident", "slid over", "subject of interrogation" "matter of orders". The highest ranking person that was convicted of something was lower than a lieutenant colonel. Karpinski got administrative discipline of demotion. Not one person with a star was convicted of anything.

The evidence argument is one that I love since it has been patently clear that all of the investigations that were done were structured purposefully to look down the chain of command and not up. And the chain of command has worked extra hard to protect from prosecution anyone with a star or higher civilian from being confronted with evidence. Karpinski has given sworn testimony that Miller was running the place and told her to backoff. Miller was on the phone up to Rumsfeld's fair haired boy on almost a daily basis. But, of course, all that stuff is not going to be good enough evidence for you. How about the brass coming out to Abu Ghraib to Bagram and leaning long and hard on the persons below to get the intelligence.

Someone is going to break the "omerta" on the torture and then you will believe it. Others of us have seen so many smoking guns laying around on the torture issue to have it be patently clear that orders to do this go up to the President and that criminal investigations and prosecutions should be done.

"Keeping an eye on armed adolescents who were trying to figure out ways to pass the time was part of my job."

As Alberto Mora, former General Counsel of the Navy who ran around the Pentagon screaming about this being a bad idea noted, there were no limits set in the memos from Rumsfeld so the process of "force drift" would happen. You were there to keep your adolescents from doing dumb shit. Yeah but when the people above and around you outside of your chain of command are encouraging them and discouraging you from doing anything about it - do me a favor - and don't put the blame on the kids below only.

Best,
Ben
11.14.2008 11:47am
John Moore (www):
Ben,

By all accounts, the objectionable activity in Abu Ghraib was the result of a sexual orgy conducted by low ranking enlisted people, who used sadism on the prisoners as part of their game. It is appropriate that criminal punishment was handed out to the perpetrators, and administrative punishment (such as demotion) was handed out to those who, only through lack of adequate supervision, allowed this to happen.

To say that this was encouraged at the highest levels and that high level people should be criminally prosecuted is absurd.

That orders to use coercive interrogation, arguably torture in the case of warter-boarding, go up to the president is not as extreme. The argument that such decisions were wrong, worse criminal, is much more extreme - especially considering the strong limits placed on such techniques and the few times in which they were used.

Your arguments strike me as more the lashing out of a Bush hater than related to the evidence and issues at hand.
11.14.2008 12:48pm
John Moore (www):
wfjflag

Sorry I failed to realize the sarcasm of your comments on "settled." It appears we share the same opinion.
11.14.2008 12:49pm
Howard Gilbert (mail):
If there is definitional uncertainty about the status of detainees after seven years, doesn't this demonstrate a disastrous flaw in the system of US courts and legal education? Is seven years too little time for the courts to decide if this is a war, or if certain detainees are POWs?

Law schools teach that proper judicial behavior is to decide each case on the narrowest possible grounds. So every big case that spent two years getting to the Supreme Court was decided in terms that addressed none of the important issues and answered none of the real questions. Hamdi only determined that US citizens held as enemy combatants had a Fifth Amendment due process right to contest that classification before some sort of impartial tribunal. Rasul determined that detainees fell under the Habeas statue, and was then rendered obsolete by the MCA. Even Boumediene only really found that common law Habeas was a power of the courts that extended to Guantanamo and was not an individual right (so the question of whether detainees have any individual rights under the Constitution was remanded to the lower courts and is still in dispute).

The judiciary is also barred from issuing advisory opinions. If they use every opportunity to dodge the important issues in every case that comes before them, how do you expect the definitional uncertainty to be overcome? Of course, you can simply accept the definitions that the Executive made up from the beginning, or the ones that Congress added in the DTA and MCA. If those are unacceptable and you insist on judicial interpretation, then the root cause of the problem is found in the law schools that teach that this type of issue avoidance is proper judicial behavior.

I understand that Dred Scott was a terrible decision and we should avoid repeating it. However, the universally accepted solution that we avoid this mistake by not making decisions at all produces precisely the problem we face with the detainees.
11.14.2008 12:57pm
martinned (mail) (www):
@Howard Gilbert: Theoretically, the system requires that such issues are provisionally cleared up by OLC opinions. They are supposed to be the executive branch's own internal court. They definitely do issue advisory opinions. The only problem is that during the present administration those opinions have proven to be less than convincing, to say the least.
11.14.2008 1:03pm
Richard Aubrey (mail):
Ben. Absence of evidence is not proof of evidence. In the military, you get punished criminally for criminal acts. You get punished administratively for failure, in this case, to control the situation. In some cases, failure to control or otherwise command is addressed criminally.
Karpinski lost her career for failing to control. There is no reason to convict her of anything, since she did nothing criminal.
The sliding over is you. Even if regularized torture can be proven, connecting it to Abu Ghraib will be difficult, since there is no evidence of a connection.

"Indirectly". Some of the '93 terrs went to Iraq as they skedaddled about the world. Iraq was supporting terrorism. If Iraq facilitated the career of a terr, or even the transportation on the way through, Iraq was indirectly connected to his future program.

We have processes to decide whom to shoot. BTW, how's that stringent law against inciting violence going in the UK?
Not hard to find reports of such goings-on in mosques and the no-go areas of the larger cities.
11.14.2008 1:10pm
MarkField (mail):
Richard, I'd be happy to compare Bush's torture schemes to those of Stalin or Mao (in quality, not in quantity, obviously). That is, after all, where the CIA got many of its ideas.
11.14.2008 1:14pm
Richard Aubrey (mail):
Mark.
Why do you think the CIA just got around to it in 2000?
11.14.2008 1:29pm
wfjag:
John:
Your sarcasm sense did not fail you. I was not being sarcastic. Rather, exhaustion or resignation are apt descriptions. Insanity is repeating a losing behavior or strategy. The SCOTUS has repeatedly made a mess of the law in this area, and I always keep in mind the truism "No matter how bad things are, they can be worse." Handling of the detainees is a politicized issue that has resulted in politicized decisions. I see no reason to provide additional opportunities to the federal courts to make even worse decisions.


a new Dem V.P. who has stated that "ideology" or "judicial philosophy" is the most important consideration in choosing people for the federal bench

Well, won't THAT be just a complete change from what we've seen under Reagan and Bushes.

Yes, Anderson, it will be a major change. Biden, openly, and Obama (assuming his 2001 NPR interview represents his current thinking) seek to re-write the Constitution via judicial "intrepretations", and will appoint federal judges who will do that. This type of activism is far different from seeking judges who will read the Constitution and the ratification debates to determine the drafters intent, look at precedent, and render narrowly tailored decisions. Historically, activist judges, whether conservative or liberal, have screwed things up. Further, they invade the areas which the Constitution assigns to the political branches, the states, or reserves to individual citizens each time a court decides that the Constitution requires or prohibits something. The petition clause (1st Amendment, last clause) guarantees the right of each citizen to petition Congress for redress. When a court declares that the Constitution requires or prohibits something, that right is eroded. One nice thing about electing members of Congress is that when they finally screw up enough and so P.O. enough of the electorate, we can vote them out, and see if their replacements do better (and, if not, vote them out). Federal judges are for life.

Dilan asserted:

I'm not puzzled at all. We tortured a bunch of detainees. THAT's the "classified information" that everyone is worrying about disclosing.

Do you have any evidence of that? The International Committee of the Red Cross has had teams at Gitmo since it opened who have 24/7 access to any area to investigate alleged violations of international law. I don't recall seeing any reports by the ICRC finding any serious violations -- and torture would be a serious violation. Do you know of any such reports by the ICRC?

Next, allegations and information about treatment of detainees has been widely reported -- the detainees have attorneys, who appear to have to problems reporting to the press any allegations their clients have made. And, assuming that waterboarding is torture, the 3 instances of its use (none at Gitmo) have been widely disclosed. Information in the public domain that has been confirmed as accurate is not classified (even if it once was classified). The Gitmo guards are all military and any acts constituting "torture" will violate one or more UCMJ provisions. 11 Soldiers were Court Martialed and convicted due to what happened at Abu Gharib, and Officers senior to those were punished administratively. Accordingly, it is apparent that the US military will take action against misconduct. Some sources supporting your allegations are warranted.
11.14.2008 1:46pm
Richard Aubrey (mail):
Mark.
No, they're not warranted. The accusations are sufficient.
You know not whom you confront.
11.14.2008 2:27pm
Benjamin Davis (mail):
"Do you have any evidence of that? The International Committee of the Red Cross has had teams at Gitmo since it opened who have 24/7 access to any area to investigate alleged violations of international law. I don't recall seeing any reports by the ICRC finding any serious violations -- and torture would be a serious violation. Do you know of any such reports by the ICRC?"

I guess folks missed the meeting when the ICRC met with Bush and others at that level and said war crimes have been committed. It has been reported in the press.

The misfeasance/malfeasance distinction is one particular aspect of discipline vs. prosecution discussions in the military. The lower level did malfeasance. The upper level only misfeasance. It is an old word game that leads to discipline at best for those with stars and the brig for the schlubs at the bottom. Just because you can get someone to do your dirty work instead your own hands dirty does not mean that you are off the hook for the dirty work that they did.

Yes, I know the picture of the Iraqi guy banging his head against the wall until he bleeds - just a bunch of sexual orgy stuff. And the guy standing naked in forced standing with some scuz all over him - yes just sexual orgies. And the Iraqi general who was killed by the CIA in the shower and dropped in the lap of the Abu Ghraib folks - just sexual orgies all that.

Puhleaze!

As to the orders coming down - I recognize that orders to do things that violate the UCMJ under the theory that the President can do anything he wants is the argument that makes none of this criminal. That's the one that OLC made. I just do not buy it and I want a criminal court to evaluate that in a criminal prosecution.

Since there are low level persons who were convicted for these things and were not privy to the various memos from on high which confirmed the basis of their argument that they were under orders (because those on high were keeping the memos secret), I do not dismiss all this as some sexual orgy game. Tell Dilawar about that and the persons at Bagram, others at Abu Ghraib, folks at Gitmo, and folks who were in the American gulag. Tell Murat Kurnaz or El-Masri and the rest of them this was just a few bad apples having sexual orgies. This was and is systemic and, like a fish, stinks from the head.

As to the lack of definition seven years in, folks, the point of the whole effort at the beginning was to extract these persons from perfectly usable definitions so that bad things could be done to them. If they are not called a POW then no foul under Geneva. The reason there is no definition is not just some difficulty with these particular people. The reason is that people in the administration wanted to treat these people in a certain way and needed to fashion the arguments in legal sophistry to get them where they wanted to go. The reason that these definitional games stay on is that crimes were committed. And those who committed the crimes have every interest in pushing along the idea that there are no definitions that are clear enough. Nothing more interesting than that in the definitional game.

Best,
Ben
11.14.2008 2:50pm
bluehorse (mail):
wfjag: Unless its rules have changed recently, the ICRC does not itself release findings. It reports them to the nation holding the prisoners, which may then release the findings if it so chooses. The US has chosen not to release ICRC findings.

As to the issue of which judges are "activist" judges, there are some scholars who have concluded that social conservative judges use strict construction and originalism to justify their own political agendas and not to provide objective standards for Constitutional interpretation. This is difficult to prove or disprove, but there is evidence that suggests this is to some extent true.

I submit that all authorities use their subjective values in appointing judges - some openly, some covertly, some unconsciously.
11.14.2008 2:59pm
Oren:

Customary international law allows holding combatants until they are no longer a threat.

If you want to claim the powers inherent in customary international law then you will also have to accept the limitations of customary international law. Somehow, I get the feeling that you want to appropriate all powers but none of the restrictions.

Let me know if that feeling is incorrect.
11.14.2008 2:59pm
lucklucky (mail):
I think any system that rewards non-Geneva convention behavior and benefits those that game the system is imoral.

We must not forget that civilians are increasingly in frontline because there is a narrative bias in favor of those that fight with civilian clothes and try to hide behind civilians. This have caused enormous cvilians deaths in last decades and no one talks about it or seems upset.

I think the system should give sensible latitude rights to determine status: I mean to determine if some person is or is not a combatant. If afirmative, most rights ends and the State can lock him as any POW and even go after him for unlawfull combat.

People must remember that soldiers if they sense that combatants are being released to fight again they will just stop making prisioneers.
11.14.2008 3:59pm
Benjamin Davis (mail):
Might I commend to any of you in denial Torturing Democracy available here. You can watch the whole program. No doubt those in denial will continue to say its just a few bad apples. Puhleaze!
Best,
Ben
11.14.2008 4:33pm
Happyshooter:
My paper is much shorter.

"Any person captured by US forces out of uniform or in violation of the law of land warfare should be:
1. Given a summary hearing in front of a commissioned officer;
2. If found to be an illegal combatant, executed out of hand;
3. If not, freed if not a combatant or moved to an EPW camp if a combatant.

Why? Because that was the rule until lately, and the only reason there are new rules now is because the left thinks terrorists are heros."
11.14.2008 4:33pm
Happyshooter:
Karpinski lost her career for failing to control. There is no reason to convict her of anything, since she did nothing criminal.

To be totally correct, she was taken from command for not showing effective leadership.

She was demoted from General Officer to Colonel as adminstrative punishment for failing to report her apprehension (millitary version of arrest by police) for shoplifting in a military exchange.

Side note: military arrest is the ordering of a person into confinement or restriction as to movement, which is done by a commanding officer.
11.14.2008 4:38pm
John Moore (www):
@Howard Gilbert

The real problem here is that this issue is simply not appropriate for our judicial system.
We need the legislature and the executive to craft new systems for dealing with this kind of conflict.
We need the courts to review those, but in the context of the conflict and constitutional intent,
not hindered by precedents and customs from our criminal justice system.

@Benjamin Davis People tend to conflate Abu Ghraib and the "torture" controversy. They shouldn't. Abu Ghraib was indeed afew bad apples. The use of coercive interrogation, on the other hand, is a policy of the executive department. It is not a willy, nilly set of activities, but rather a specific, defined policy. The US has used technique that some people (almost all of whom are opposed to US policy IN GENERAL) claim are torture. Certainly water-boarding is debatable, although I would argue that the traditional definition of torture requires serious sequelae and physical damage. Furthermore, since our own troops
are water-boarded as part of training, it is unreasonable to consider it an atrocity of any sort.

As far as Karpinski, she was appropriately punished - having her career and reputation destroyed.
11.14.2008 6:52pm
Benjamin Davis (mail):
John Moore - conflate is a nice word to try to make a distinction without a difference. Abu Ghraib is more than a few bad apples and until you get that you just do not get it. Karpinski's demotion "on other grounds" was set up precisely to not appear to criticize anyone with stars for what they were doing at Abu Ghraib because that would raise the issue of all the generals and the policy. They held the line for her, Sanchez, Wojadowski, and the MI general whose name escapes me to make sure none of the dirt from what they put in place led to a general getting convicted for a war crime. No dirt on those precious stars. Karpinski was a fall guy (woman).

New systems are just proposals to try to change law to hide the crimes. Let's prosecute the ones who did it now and then after that look at what needs to be changed.

As to waterboarding being debatable for torture - this is where I step away from discourse. If you are at that level of denial about torture after all this time there really is nothing to say to you. Waterboarding is torture.

As to waterboarding in training as an argument and it being unreasonable to consider it an atrocity of any sort, one of those 20 years SERE trainers named Nance explains it quite clearly in the Torturing Democracy video I linked to above. Richard Armitage, former deputy Secretary of State explains it also. It is what a totalitarian regime with no respect for human rights would do (the mantra phrase for SERE training). It is controlled drowning. And controlled drowing is torture no matter what the nicety of denial you want to put on it.

Best,
Ben
11.14.2008 7:47pm
John Moore (www):
Ben,

Would you care to provide any evidence that the escapades at Abu Ghraib were more than an aberration? Or are you talking about something else, like the stressful positions interrogation techniques? In other words, please describe specifically what it is you are objecting to.

As for SERE training, I went through it, voluntarily, as did all I served with. I don't remember the mantra phrase you report, though.

Water-boarding is SIMULATED drowning. People do not die from it. People do not suffer permanent injury.

As to civilized nations... Is it civilized to bomb an enemy city, taking utmost precautions, using minimally sized precision bombs, but still unintentionally kill innocents? We have been doing this, and it is legal under international law.

So if we can kill thousands of innocents this why, WHY is it uncivilized to subject, under stringent controls, a few likely highly important CI sources, to a few minutes of waterboarding?

How about using drones to fire missiles at houses in lawless lands thought to contain enemy leaders? This also has collateral damager? Is waterboarding worse than this?

Please explain why the prohibitions on what is maybe torture, and certainly mild compared to what historically is considered torture?
11.14.2008 10:18pm
Benjamin Davis (mail):
Evidence - watch Torturing Democracy at www.torturedemocracy.org.

SERE training - watch Nance refer to that as the mantra in SERE training. Guess the one's who taught you did not get that lesson.

Waterboarding is simulated drowning - Sorry go see Nance from SERE training call it controlled drowning in the above video. The person under it is having the reflexes of drowning. The body does not know the subtle difference. Simulated drowning is a term created in the Orwellian language being used in this arean (enhanced interrogation techniques etc) so as to not call a spade a spade.

Bombing, drones and all that vs. torture of prisoners. As a military person you know the difference between attacking a military objective pursuant to the principle of distinction and proportionality and what you do with persons who are captured (hors combat) or civilians.

Fundamentally different situations. At least in civilized war not barbaric actions that besmirch the US and violate the UCMJ which I assume you were also trained to. Captured persons are to be treated humanely - whether POW's, security detainees or civilians. What we have been doing is not that. Your "a few high value detainees" is another part of the denial. Only in the minds of spinmeisters and apologists for the policy of cruelty.

John, I can keep this up for a long time and I know that you will be absolutely certain that what we have been doing is OK. So I will just say that it is a war crime and I will continue to seek prosecution of the high-level civilians and generals who put in place this policy of cruelty. If grunts can be court-martialed these top level SOB's can be prosecuted or court-martialed for setting them up. Shit can roll uphill if there are people willing to have the political will to do it rather than be apologists for indefensible.

Best,
Ben
11.15.2008 12:29am
Howard Gilbert (mail):
It remains true that the definitional uncertainty that Amos Guiora refers to does not really exist. The administration and Congress have very clear definitions. Lower courts have issued specific (and sometimes contradictory) interpretations of the law. The Supreme Court has generally ducked the important issues. Many people disagree with the administration, Congress, the Fourth Circuit, the DC Circuit, and various district court judges. Academics disagree with each other. A failure to agree, however, is different from ambiguity or imprecision. It is not that the existing definitions don't describe the reality, but rather that different people insist that various incompatible terms exactly describe the problem. Creating yet another new contradictory description increases rather than resolves the controversy.

Not all detainees are "individuals suspected of involvement in terrorism." Some were like Hamdi, front line soldiers deployed in the Panjshir valley against the Northern Alliance. If an entire country, government, and army can be declared to be "terrorists" because of the actions of 19 men half a world away, and if that then cancels out our obligations under international law, then everyone will call the US and everyone else "terrorists" and you might just as well tear up the Geneva Conventions. The enemy will claim that "Shock and awe" is terrorism. Why were the deaths of people in the Windows on the World restaurant a case of terrorism, while the diners who died in the bombing the Baghdad restaurant where Saddam was incorrectly believed to be eating dinner were legitimate combat casualties?

Afghanistan declared war on the US twice, in Aug 96 and then again in Feb 98. In Oct 2000 they executed the quintessential act of war, attacking the USS Cole and killing sailors. President Clinton called it an act of "terrorism", because it was politically inconvenient to admit we were at war with a country so poor, powerless, and difficult to get to as Afghanistan. Under US domestic law we are not at war until Congress says so. However, in international law, Afghanistan gets to start the war if it wants to. Article 2 of Geneva III says that the Convention applies even when one country doesn't admit that there is a war, and Article 4 says that it applies to the regular army of a Geneva signatory (like Afghanistan) even if we do not recognize its government.

So I disagree with Guiora's claim that just because the US decided as a matter of policy to substitute name calling for analysis that there is as a consequence some uncertainty as to whether the conflict was a war. Nor do I regard an army of 45,000 light infantry to be "definitionally challenged." The oft repeated claim that al Qaeda is "just a bunch of criminals like the mafia" has no more substance than the corresponding charge we always hear that the US is a gang of criminals. Name calling occurs in every war, and if name calling cancels out obligations under international law then there is no international law. Al Qaeda was part of the Taliban government, and "the planes operation" was presented to and approved by the Taliban leadership that was the government in control of the country and army.

What should be the obvious abuse (maybe war crime) of the Bush administration was its failure to take seriously its obligations under the Geneva Conventions. However, most administration critics also would like to claim that the enemy are terrorists not covered by the convention. It's just that they then draw the conclusion that the detainees are entitled to criminal process instead of military detention. The fact that both sides of our internal national ideological dispute have decided to agree on the same bit of specious nonsense (with completely opposite conclusions) does not excuse our failure to follow the clear dictates of international law. It was a real country with a real government in charge and a real army that started a real war. When captured, their solders should be treated as POWs. Some of their leadership committed war crimes. We know exactly how POWs and war criminals are supposed to be handled. If classified information poses a problem for prosecution of the war crimes, that is a procedural problem, not a conceptual ambiguity.

On the other hand, if in the future someone takes a "War on Terror" seriously then in the future we may actually detain some real terrorists who had nothing to do with the Army of Afghanistan. Then we may need a new court to update some of the 19th Century British Admiralty law on pirates. That is different from the question of how to handle the current detainees from the Afghan war.
11.15.2008 12:44am
John Moore (www):
@Ben,

Regarding your ONE cherry picked former SERE trainer, do you assert that person speaks for all SERE trainers? Are you aware that SERE school is classified and revelation of details of its techniques is illegal (except where authorized by command)? Did this person have command authorization? What are this person's motives?

As to the "controlled drowning" vs "simulated drowning" - hey, they DON'T DROWN. They do not die. They do not lose consciousness. That is not drowning, controlled or otherwise.
As a military person you know the difference between attacking a military objective pursuant to the principle of distinction and proportionality and what you do with persons who are captured (hors combat) or civilians.


Yes, as a former military person, I know that persons captured in combat who are not following the Geneva conventions are war criminals, subject to tribunals and punishment. That applies to every one of the combatants we captured (AFAIK), since they did not follow convention. Those individuals captured by counter-intelligence means are in a somewhat different position, but were still belligerents waging war by illegal means against us.

The point I am trying to make is that the huge outcry against "torture" is grossly disproportionate to the harm caused by that activity (and the gains from it), when compared to other harms, to presumed innocents, in that war - harms which are clearly and completely legal. Note also that in both cases the clear intent is to gain military advantage by applying coercion (or direct kinetic violence) to presumed enemy. Hence I call hypocrisy and invoke common sense reasoning, and challenge you to directly address this point.

@Howard,

You are right that Afghanistan declared war on us. However, their soldiers did not wear uniforms, as required by the Geneva conventions. They did not make any attempt or appearance of such to wage legal war. While they might not meet the easiest definition terrorists, the were illegal warriors and fighting for a government which engaged in terrorism. However, I agree it would be more appropriate to simply call them illegal combatants.

Hey, isn't that what the government calls them?

Also, the government has not and doesn't plan to try these low level war criminals (whose crime was to not follow the Geneva Conventions by failing to wear a uniform) and has sent many homes. In other words, it is not treating them as terrorists or even the illegal combatants that they are.

Others captured are in an even more interesting position. The Taliban (with whom we are still at war) used Al Qaeda as special troops (also not in uniform) in their military. These were not Afghan citizens. Furthermore, Al Qaeda had an independent command and simultaneously worked to commit terrorist acts against us.

9-11 changed the world in a very critical way. Prior to 9-11, the reigning model of terrorism was that of limited attacks to achieve political ends. This was typical of Al Fatah for example.

I think it highly inappropriate to apply current treaties to the modern situation, because the situation is special. This terrorism now poses grave and potentially existential threats to our nation, through the use of modern technology and the very real possibility of nuclear or biological weapons. In the past, terrorism was usually part of civil war, and certainly did not involve WMDs.

The blind adherence to this old paradigm by the Clinton Administration is one reason they ineffectually used the justice system, failing to stop the escalating attacks. 9-11 (and Al Qaeda statements) make clear that the intent and capability exists for stateless terrorists to literally wage war, not just commit murder on a limited scale.

That situation is what requires special means. This is not last generation's threat. This is an active enemy, having demonstrated the willingness and ability to kill thousands at once in our homeland, working to obtain and use WMD's against us, with a religious goal of world domination. Al Qaeda asked for an received a fatwa allowing them to kill millions of innocents to achieve their goal.

We have a new confluence of an ideology willing and able to inflict national scale destruction with the advances in technology that make this possible.

This presents us with an unprecedented form of conflict
.

Does that sound like something to be dealt with the system we use to prosecute rapists and burglars?

We now need rules for true warfare waged by non-state actors who don't pay heed to any legalities. Until we have this, we will be weakened by internal divisions and attacked for defending ourselves.

BTW, Is the Taliban, as the government of Afghanistan now in exile, is this still a war between nations?
11.15.2008 2:22am
Howard Gilbert (mail):
The Afghan king was overthrown by leftist in the army. When they could not hold out against the tribesmen, they invited the Soviets in to help. Of 15 million Afghans, 1 million died and 4 million were injured fighting the Soviets in a war where all the "bad guys" wore army uniforms and all the "good guys" didn't.

So when the Taliban formed an army, they consciously modelled it after the victorious force that defeated the Soviets and not after the traitors that invited the Soviets to invade. They do not care about Western forms of government, or military organization, or law (including international law). They had no president or parliament, but instead used a tribal consultative structure. They had no lieutenants or captains in their army, but a collection of tribal militia with native leadership. They didn't even care much for the Western imposed borders of Afghanistan, and 10,000 of the 45,000 front line soldiers were Pashtun militia from the Pakistani tribal areas.

So yes they didn't wear uniforms. Neither did the Northern Alliance. It isn't part of the Afghan military tradition, and as long as the fighting remained local it wasn't an issue. Then we invaded their country. They started it, and we were perfectly justified. But if we go to their country to fight, we cannot get all huffy because their local customs don't agree with our view of propriety.

So then you have the big question. We go to war in a distant land where their customs are not those of the West. Do we get to declare that international law can just be tossed out the window, or do we have to cut some slack here. If someone "carries arms openly" as part of what is obviously an enemy military formation, do we treat prisoners as POWs even though they follow Afghan and not Western dress? Before you answer that question, look back at those pictures of the US Special Forces on horseback riding through Afghanistan in 2001. They were wearing what legally passes as uniforms, but they certainly didn't look like US soldiers.

There are three clauses of Article 4 of the Third Geneva Convention covering troops. Only the middle clause requires something like a uniform. The first and third clauses apply automatically to "Members of the armed forces". I suspect that the Western governments that wrote it assumed that regular armies wear uniforms, but they didn't write that into the text. So the Afghan army, including units trained and equipped by al Qaeda, falls within the plain language of "1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces" or "3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."

When the Taliban moved their army and government across the artificial Western drawn border between Afghan Pashtun and Pakistani Pashtun tribal lands, the war did not end. It is another tradition that the government in Kabul controls little and that borders mean nothing. A war ends when the enemy surrenders, makes peace, or is destroyed. This enemy hasn't even stopped fighting. Remember, the Soviets invaded, fought, and retreated while a government favorable to them ruled in Kabul. So what.

Do not confuse the potential for future war with non-state actors with the current legal situation of Afghanistan. We would have faced an entirely different problem if al Qaeda had been part of the Pakistani tribal structure. Then we would have had no country to blame for 9/11. Fortunately, there was a country, government, and army involved. We should have counted our lucky stars and fought a traditional war against the traditional enemy we had been given. Instead we decided to disgrace ourselves by ignoring our obligations under international law.
11.15.2008 9:19am
Benjamin Davis (mail):
"The point I am trying to make is that the huge outcry against "torture" is grossly disproportionate to the harm caused by that activity (and the gains from it), when compared to other harms, to presumed innocents, in that war - harms which are clearly and completely legal. Note also that in both cases the clear intent is to gain military advantage by applying coercion (or direct kinetic violence) to presumed enemy. Hence I call hypocrisy and invoke common sense reasoning, and challenge you to directly address this point."

I will respond as follows:

1) the laws of war prohibit torture ("coercion (or direct kinetic violence)" are more Orwellian phrases trying in this case to take terms from the battlefield setting and apply them to actions against persons who are detained and completely in the custody and control of their enemy - the two are inapposite).

2) your proportionality evaluation attempts to balance the horrors of war fighting with the torturing of detainees. It is a false balance because one can always increase the amount of warfighting violence that is legitimate that creates macrodamage and compare it with what will be perceived as so small in comparison in the form of torture of always very few people. This is another variation on the ticking time bomb type analysis that has bandied about all these years (in that case there is the greater good of saving millions in exchange for a little torture). The outcry from people like me is that torturing people is a crime - a war crime - and I did not sign up for America committing war crimes. And also that the SOB's who put that torture in place at the top should go to jail for what they did like any two bit crack dealer. I also do not believe that the torture happened to just a few people. No this was industrial strength torture with varying degrees of severity for varying people.

3) Common sense reasoning use to be that you followed your training or you risked getting court-martialed. You did what the UCMJ told you to do. You are speaking the common nonsense that has been the basis for getting us into a War in Iraq on false pretenses and having America torture people. Common nonsense.

4) I want to second Howard's analysis. I am consistent with his analysis in an article I wrote entitled "Keeping Our Honor Clean: A Response to Professor Yoo, 4 Chinese Journal of International Law ____ (December 2005) (Oxford University Press)"

I am always less eloquent than Howard but I assure you that our efforts over these years to reject the common nonsense will persist and be relentless because, as a citizen of the United States, it is simply unacceptable to me to have my government torture people. Sorry - that's my line in the sand. And it is unacceptable for me that a bunch of kids be thrown under the bus and the folks who put the structure in place live their lives quietly afterward. No, we are going to work to make sure that Cheney, Gonzales, Flanigan, Yoo, Addington, Miller and the forty odd others I list in my article "Benjamin G. Davis, Refluat Stercus: A Citizen's View of Criminal Prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment 23.2 St. John's Journal of Legal Commentary _____ (Forthcoming 2008)" have their day in court, are convicted and go to jail.

Best,
Ben
11.15.2008 1:11pm
John Moore (www):
@Howard,

It would appear the first part of your argument rests ultimately on the right of those whose customs are different from ours to not follow international law, while binding us to it.

While the history of who wore what and who drew a border is interesting, it amounts to only mitigating circumstance in determining disposition, not definition. Either we have international law in force or not, and we can't have it both ways at once.

That the Afghans ignored the requirements to distinguish themselves does not relieve them of that obligation; nor does it remove from us the right (some would say obligation) to punish them for that error (in order to enforce compliance with the laws of modern warfare).

With regard to article 4, the crucial purpose of the "fixed distinctive sign recognizable at a distance" was so that combatants could not masquerade as non-combatants, thereby additionally endangering the innocent. That goal would seem to apply to any situation where such a problem could arise. The two clauses you quote both are written in a way that, at the time of writing, implied uniformed forces. It was and is normal for "armed forces", "militias" and volunteer "corps" to be uniformed.

Furthermore, following your line of reasoning, one could argue that the Taliban forces did not fit any other categories, but rather were essentially bandits, mercenary soldiers of individual war-lords who simply allied with each other.

Or, given the command structure, one could argue that they were operating in support of the illegal organizaqtion Al Qaeda, as Al Qaeda personnel held commanding or zampolit positions at most levels.

The other clauses clearly are intended to apply to situations where that confusion is not likely to occur in a conventional war.

NOte that most captured combatants were not sent to Guantanamo, which is the nexus of this discussion. Guantanamo is about terrorism, not the war against the no-longer-existent government of Afghanistan (of course, one does have a definitional problem with Taliban).

To confuse matters more, the current situation has no country involved.

To make it even more obscure, the issue of special forces was mentioned. Every modern nation has special forces whose very usage often involves masquerading as civilians. These operators expect to be treated as illegal combatants or spies upon capture, even by the (so far non-existent) enemy acting in accord with the 1949 protocols.



Finally, I find the great concern about "disgracing ourselves" to be irrational and misguided. I frankly don't care if we "disgrace ourselves" in this situation, because grace is a luxury and the disgrace is only to those who hold laws and treaties in such high regard as to require applying them to situations for which they were not intended and for which they do not fit.

I do, however, care that we act morally, which is why I raise the (so far unanswered) question of why water-boarding is an atrocity but killing civilians by accident (but in operations knowing they would be killed) is not.
11.15.2008 1:19pm
John Moore (www):
@Benjamin Davis

Thank you for addressing my challenge, but you miss my point. This issue is not about the number of individuals harmed. It is about the quality of the damage. That is the torture argument, after all: if we torture ONE person, regardless of circumstances, we have done wrong. The correct parallel argument is: if we main or kill ONE innocent civilian, in legal warfare, we have done wrong. Please argue the qualitative comparison, not the quantitative one.

In any case, you are welcome to your opinion, which I will summarize (for clarity and to which you are welcome to correct) as "torture is evil. period. we should never engage in it."

I realize you will never be moved from that position.

And I will stick to my opinion that coercion (or low-end torture if you wish) is sometimes necessary, and should be used, in minimal ways, in tightly controlled circumstances, where the gain is crucial to saving many. Please note ALL of those qualifications, because without them, it would be irresponsible. I would add that it would be best within a legal framework, and that we need such a framework.

I strongly disagree with you about the idea that torture was widespread. It was not.

As for prosecuting former officials, I consider that to be extremely unwise, both because of the circumstances in which they acted, the care that they took to avoid excess, and because of the irreparable harm the prosecutions would cause to our country.

Such actions will cripple our ability to prevent truly damaging attacks. I'm not talking about mere blowing up of a schoolbus full of kids, as horrible as that is, but the detonation of a nuclear explosive in a major urban area, or the release of a weaponized contagious biological agent. Do you deny that these are clear threats?

Note the damage done by the Church committee in the 1970's, which so terrified CIA operatives that many quit and most others stopped being effective. Is it so surprising that this crippled agency was then wrong about the fall of the USSR, failed to predict the Iran/Iraq war, failed to predict the Russian invasion of Afghanistan, failed to predict the Iraqi invasion of Kuwait, and failed to provide accurate information about the WMD situation in Iraq in 2002? The well-intentioned efforts to stop real abuse led to the unintentioned effect of preventing any effective operations.

This persecution would also substantially widen the divisions in the US polity, greatly angering a large number of people. Don't we have enough of that already? It would encourage retaliation, and criminalization of our political process has already gone dangerously far.

In times of great national tragedy and danger, leaders should not have the threat of criminal prosecution hobbling their every action. From what we know, the Administration has not simply let loose the dogs of torture, but rather has used a measured and restrained approach. Not restrained enough for you, but certainly not the sort of wholesale atrocity you imply.

The use of lawfare (which is your intent) is as damaging as warfare to our security. It can also be counter-productive, damaging all of our freedoms. If a major attack takes place, what do you think the citizens will demand? They will demand security over freedom, and they will demand it immediately. Preventing that attack, or at least taking measures that clearly are likely to prevent the attack, is the best defense against the inevitable consequences of the attack.

Consider the result of a crude assembly-type HEU nuclear explosive detonated on the ground in the center of a major American city. Obviously you would have hundreds of thousands of deaths. You would have vast destruction. Large parts of that metropolitan area would become uninhabitable for years (Hiroshima and Nagasaki, as air bursts, did not produce localized fallout and thus did not have this radiological effect).

But the immediate effects would be followed by society's reactions: the value of high density real estate would crash, as people fled to area that were less likely targets; cities as a form of living would die; citizens would demand revenge (human nature, I'm afraid) and whatever it takes to punish the responsible and prevent the result.

Oh, and this is for a mere nuclear attack. A biological attack could make this seem mild. A weaponized flu or SARS virus (and the SARS genome is available online to anyone) could kill tens of millions in the US and hundreds of millions around the world.

We would emerge at best as a surveillance state (I have argued this will happen anyway). This happening suddenly would be very dangerous to civil liberties.

Our retaliation would likely be nuclear (as demanded by frightened citizens), probably killing millions of innocents.

We would likely exercise unprecedented extra-territorial power.

This is not scare mongering. This is, unfortunately, the new reality.

Here your bias is terribly clear:

And it is unacceptable for me that a bunch of kids be thrown under the bus and the folks who put the structure in place live their lives quietly afterward


What those "kids" (armed, trained soldierss) were prosecuted for was absolutely not sanctioned by their superiors. They were prosecuted for actions that violated the intent and orders of those high in command. This "throw the kids under the bus" rhetoric is simply a lie. The "kids" were guilty of gross misconduct and crimes against persons. Period. That misconduct and those crimes for which they were prosecuted were not administration policy.

Finally, please be clear: Do you oppose the use of limited torture (less say, water-boarding as the most extreme type) in the ticking bomb scenario - specifically where officials have good but not absolute information that the subject has information which could prevent the detonation of a nuclear weapon or the spread of a highly infectious biological agent? I would like you to answer that question directly.

BTW, is your article available on-line? As a mere citizen and veteran, I don't have routine access to Lexis or law journals.
11.15.2008 2:00pm
John Moore (www):
@Benjamin Davis

A question... why prosecute Cheney? He has no more authority than a private citizen except as the presider over the Senate.
11.15.2008 2:03pm
Howard Gilbert (mail):
For the moment, let me ignore the dispute about what is or is not torture. If someone is protected by the Third Geneva Convention, then he can only be required to give name, rank, and serial number. You can ask additional questions, but you cannot punish a POW for refusing to answer the questions, even if the punishment is as mild as taking away desert. Had Abu Zubaydah and KSM been captured by the military in Afghanistan, and assuming that they were military officers protected by GC III (though also war criminals and pirates because of 9/11), then water-boarding would clearly have been a violation of international law whether you regard it as torture or not.

However, they escaped over the boarder to Pakistan where they pretended to be civilians. They were arrested by the Pakistani police, who had every right to treat them as criminals since there was no state of war between the Taliban and Pakistan. They were then transferred to the CIA, which is a civilian agency and not part of the US military. They would still not be protected by the Geneva conventions until they were transferred to the military in Guantanamo. If what the CIA did was torture, then it was a crime but it was not a violation of Geneva protections.

This does not provide a blueprint to get around Geneva obligations in the future. A required element of the analysis was the decision of the enemy officers to, on their own, cross a boarder and enter a neutral country dressed as civilians. This makes the question of torture and the high-valued detainees completely separate from the question of POW status.

I am more concerned about the new detention standard operating procedure that permitted sleep deprivation and hypothermia to be used by the military to make detainees more compliant. This violated international law and traditional military regulations. Every army has bad apples, and once you throw away the rulebook, Abu Ghraib becomes a foreseeable consequence.

Ultimately, KSM demonstrated the limits of torture. After being subjected to waterboarding for a few minutes, he thought about it overnight. The next day he confessed. He confessed to everything he had done, to everything he might have done, to everything he clearly had not done. If asked, he would have claimed to been the second gunman in the JFK assassination. He realized that while torture can be used to make someone start talking, there is nothing left to use to get them to stop talking. The statements cannot be used in a prosecution, and if you mix in enough lies they are a questionable source of intelligence.

Al Qaeda and the Taliban claimed to accept only Shari'a, a form of international law that government much of the world for 1400 years. They claim that the laws of God are superior to the laws of man, while we claim that an "international law" adopted by all the white, Christian, Western, colonialist countries is superior to the law of any country or religion. So what happens when we go to war across that cultural boundary. I do not think the answer is for both sides to insist that they are absolutely right and the other is absolutely wrong. Let the fundamentalist Islamic morons take that position.

Yes, allowing our international law to unilaterally bind our actions would in theory put us at a disadvantage, but the enemy did not take any prisoners. I suppose we have to accept that if we have B1B bombers, JDAM munitions, AC-130 gunships, night vision goggles, and worldwide instantaneous communication, and the enemy has AK-47s and box cutters, then we can afford to have our behavior unilaterally constrained without generating an unacceptable risk. Yes there is some additional risk to our troops now, but isn't that better than tearing up the Geneva conventions and leaving future generations of American troops unprotected the next time we go to war against a more dangerous enemy?
11.15.2008 2:10pm
John Moore (www):
@Benjamin Davis...

Sorry, don't bother with the article link - I found it via Google
11.15.2008 2:31pm
Benjamin Davis (mail):
"Finally, please be clear: Do you oppose the use of limited torture (less say, water-boarding as the most extreme type) in the ticking bomb scenario - specifically where officials have good but not absolute information that the subject has information which could prevent the detonation of a nuclear weapon or the spread of a highly infectious biological agent? I would like you to answer that question directly."

Answer: limited torture is like being half-pregnant - the qualifier is meaningless. My answer is yes.

"Thank you for addressing my challenge, but you miss my point. This issue is not about the number of individuals harmed. It is about the quality of the damage. That is the torture argument, after all: if we torture ONE person, regardless of circumstances, we have done wrong. The correct parallel argument is: if we main or kill ONE innocent civilian, in legal warfare, we have done wrong. Please argue the qualitative comparison, not the quantitative one."

Turning to the qualitative argument - the argument is subject to law too. The legal argument is that if we act consistent with the laws of war and we kill ONE innocent civilian then we have done wrong but we have not committed a war crime. Yes, we have done wrong in killing an innocent but we have complied with the laws of war and we have not committed a war crimes. If we torture ONE person, yes we have done wrong and we have violated the laws of war and we HAVE committed a war crime.

As to prosecution being a bad idea, I think a worse idea would be to shove this under a rug in the name of some kind of reconciliation. That rewards the kind of smug arrogance that we have had to endure from the sbyres of the Administation on this subject for the past seven years. We can forgive them after we convict them but let know one think that they just get to get away with it. There is a yearning for justice. We are not all utilitarians - assuming you are making utilitarian accurate arguments.

The appearance of restraint is what seems to seduce you. Memos were written. Meetings were had by people with coats and ties and uniforms on. Euphemisms were used. The word is not the thing my friend and the thing is what happened on the bodies of those detainees and the restraint you suggest is a chimera you give yourself. Look into the abyss as Nietzche said (I believe) and the abyss looks back at you.

As to the kids, obviously they betrayed their oath and should have been charged. But the point is that they were not just off on a lark as you so strenuously attempt to insist. This fish stunk and still stinks from the top. And if the Obama administration continues it, it will stink from the top there too.

As to the Church committee, well I guess you are one of the people who think COINTELPRO and surveillance on Americans by the CIA is just hunky dory stuff along with lots of other stuff that came out in the family jewels. That's not the America I signed up for and dissent is at the heart of what America is about.

Yes we know that there will always be in times of crisis people asking of our leaders to act like barbarians. Yes, I know - a permanent feature of humans. And pick your poison - nuclear, biological, etc. But the ones who are like that are always assuming that they will never be in the line of fire for those actions by the state. And that's the problem they run into isn't it when the state turns its maw towards them and starts to chew them up because they are "security risks". I like my leaders to think before they act and to be civilized in how they act. I recognize that troubles some of you but it helps preserve a space of freedom for me that I greatly appreciate.

As to the distinctive sign of the Taliban - their turbans were distinctive sign recognizable at a distance. You knew a Taliban when you saw one was the response I have gotten from folks who knew Afghanistan. And governors of regions do not wear uniforms but are clearly protected by the GCIII provisions cited by Howard. Hey, at least one of them is languishing in Gitmo from what I hear without GCIII protections let alone Common Article 3 all this time.

And of course can we also mention Geneva IV and security detainees and the obligation of treating them humanely.

Geneva III as cited by Howard covers the space and Geneva IV covers the space. Add to that customary and conventioanl human rights law and you got nowhere to hide on torture my friend. Nowhere to hide. It's a crime. And we are going to prosecute it.

Best,
Ben
11.15.2008 2:37pm
Benjamin Davis (mail):
Why Cheney? Hey he committed a crime!
11.15.2008 2:40pm
John Moore (www):
@Howard Gilbert

Thanks for your answer.

Yes, allowing our international law to unilaterally bind our actions would in theory put us at a disadvantage, but the enemy did not take any prisoners. I suppose we have to accept that if we have B1B bombers, JDAM munitions, AC-130 gunships, night vision goggles, and worldwide instantaneous communication, and the enemy has AK-47s and box cutters, then we can afford to have our behavior unilaterally constrained without generating an unacceptable risk. Yes there is some additional risk to our troops now, but isn't that better than tearing up the Geneva conventions and leaving future generations of American troops unprotected the next time we go to war against a more dangerous enemy?


A couple of comments.

1)Something that frustrates those of us who disagree on this point is that we already greatly limit our actions and as a result do take significant additional casualties. Hence those who complain about our "atrocities" ( I am not referring to you ) are seen as grossly offensive.

For example, we could have won the battle of Fallujah by surrounding and then simply flattening it with a major bombing campaign. It would have worked, and that approach was sometimes used in World War II, which was supposed fought by "The Greatest Generation". Instead, we sent soldiers into the most dangerous kind of combat, and tooks significant casualties.

There have been similar situations, dating back to Vietnam, where our restraint (and the ultimate failure of that restraint to be understood by the press and citizenry) greatly contributed to the loss of that war. Ironically, that same restraint led to vastly greater casualties on both sides and of innocents, by prolonging the war by many years. In this case, I am not talking about torture, btw.

2)The cases where I (and I think the administration) believe limited torture is justified are not those where our massive conventional superiority is applicable. In fact, I would only find it justified in those cases where it is used to protect civilians of the United States from those who would intentionally target those civilians, and where it was used as a last resort in critical cases.

War is war, and the rules should apply in my opinion. It is also true that atrocities and mistreatment (such as at Abu Ghraib) will happen in any significant war even in the best military. This is one reason why, as a Vietnam Veteran, I was so offended at the constant accusations of atrocities by our side (when there were relatively few cases).

We have not fought against an enemy that respected the 1949 conventions since they were signed - which should tell us something about the difference between reality and idealism!

Terrorism and war directed against innocents, on the other hand, need to be dealt with by appropriate methods.

I am not a scholar of the Geneva Conventions, but it is bloody obvious that this situation had never existed in all of human history until after the 1949 Geneva Convention, and the combination of intent and ability was not demonstrated until 9-11.

As I have argued, the situation we now face is unprecedented. Our enemy plans and has carried out large mass casualty attacks with deaths in the thousands from one attack. Our enemy intends to use, and will ultimately obtain WMD's and the knowledge to use them. Our enemy has the will and religious authority to kill millions of innocents.

Hence the fundamental basis of my position is that 9-11 changed everything. If we want rule of law, we need to create new law to cover the situation. Using the wrong laws is not only inappropriate, but morally wrong because of the danger it poses to huge numbers of innocents.

I repeat: 9-11 changed things. Using pre-9-11 laws or means is foolish, dangerous and immoral.

Now, to be more specific, 9-11 was only a demonstration of the change. Those of us who had been following Islamist terrorism were aware that the paradigm (intent and methods) had changed and something like 9-11 was inevitable. Unfortunately but not surprisingly, most in the government failed to notice this change.

My only surprises on that day were the timing and the choice of weapons. I was expecting a mass casualty attack using biological agents (because they are shockingly easy to create and use by non-state actors). I still expect one, sooner if our methods to prevent it are overly restricted.
11.15.2008 4:56pm
John Moore (www):
@Ben

Thanks for your response.


The legal argument is that if we act consistent with the laws of war and we kill ONE innocent civilian then we have done wrong but we have not committed a war crime. Yes, we have done wrong in killing an innocent but we have complied with the laws of war and we have not committed a war crimes. If we torture ONE person, yes we have done wrong and we have violated the laws of war and we HAVE committed a war crime.


Yes, I am aware of the legal argument, although waterboarding and less coercive methods are only arguably torture (see below). This is one reason that I strongly argue that we should change the law. The law can be wrong - it wasn't handed down carved into stones.

Let's also consider Yoo's reporting:

... the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.

This seems a reasonable if controversial finding.

Gonzales' memo did, however, say that the terrorist threat rendered "obsolete Geneva's strict limitations on questioning of enemy prisoners.'' Why? Because the United States needed to be able "to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.'' Information remains the primary weapon to prevent a future Al-Qaida attack on the United States.


This again is reasonable if controversial, and is the basis of my argument (although I had not read it before today).

Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, "outrages upon personal dignity'') that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war.


This is a rational approach to allow the government to operate without the threat of subsequent persecution by the sort of lawfare you advocate.

It is the following sort of behavior by the administration that I find indicative of the restraint. The application of this is clear in the treatment of GTMO detainees, for example.

he other question was what standards the United States should follow as a matter of policy if the Geneva Conventions did not legally apply. Gonzales recommended that the United States should continue "its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles'' of the Geneva Conventions. Prisoners would receive adequate food, housing and medical care, and could practice their religion. Gonzales advised that as long as the president ordered humane treatment, the military would follow his orders.

Then, there's the definition of torture and the reason I do not readily accept that term for waterboarding and less strong coercive techniques:


When the Senate approved the U.N. Convention Against Torture in 1994, it stated its understanding of torture as an act "specifically intended to inflict severe physical or mental pain or suffering.'' The Senate defined mental pain and suffering as "prolonged mental harm'' caused by threats of severe physical harm or death to a detainee or third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality.'' Congress adopted this definition in a 1994 law criminalizing torture committed abroad.


If in fact this the law, where is the torture? And let us remember that the Al Qaeda detainees in particular will falsely allege all manner of abuse, as psychological warfare is part of their training and modus operandi.

Finally, Ben, I would ask you which of the actions discussed in your report do you advocate? I found that report shocking, to put it mildly.
11.15.2008 5:15pm
Howard Gilbert (mail):
"the situation we now face is unprecedented. Our enemy plans and has carried out large mass casualty attacks with deaths in the thousands from one attack. Our enemy intends to use, and will ultimately obtain WMD's and the knowledge to use them. Our enemy has the will and religious authority to kill millions of innocents."

The Battle of Britain, Stalingrad, Dresden firestorm, Tokyo firestorm, Hiroshima, Nagasaki, Holocaust... In the past we actually faced enemies who posed an existential threat to the US. Today our enemy has no ships, no planes, no ICBMs. Obviously one man with a suitcase nuke would pose a threat, but so far al Qaeda has attacked us with office supplies and plumbing tools.

On 9/11 the US was attacked by 19 guys armed with box cutters. It was not a failure of intelligence or the military, who track armored divisions. It was not a failure of the FBI, because none of these people were wanted criminals. It wasn't even a failure of airport screening since box cutters were not illegal on a plane at that time.

Ultimately, the fault lay with the American people and the governments we elected. In the face of suicide bombers overseas, nobody had changed the old rule that you give an airplane hijacker everything he asks for, supposedly to save lives. Al Qaeda exploited that mistake with terrible consequences. Today pilots know not to let hijackers into the cockpit, and passengers know that if someone tries to hijack a plane you all get up and rip their heads off.

The next attack was stopped. In "the apartments operation" several men would rent apartments in optimal locations in each of several high rise buildings' floor plans. They would then rig the natural gas feed from the stove to maximize dispersal and attach metal plates to focus the explosion on the main building structural supports. Engineers calculated that if things were done right and the gas was detonated simultaneously, that many of the buildings would collapse killing everyone inside while they slept. The attack was foiled in May, 2002 when the lead operator in the unit, Jose Padilla, was captured at the border trying to enter the US.

By luck, a truckload of abandoned enemy military personnel records containing Padilla's file had been found in Afghanistan. When questioned by the FBI, Padilla admitted his mission and described his commanders, including the people responsible for 9/11 (KSM, bin al Shiebh, al Baluchi, al Hawsawi, etc.) and accomplice Binyam Mohammed. They were all captured and are now in Guantanamo.

If aggressive interrogation has saved a single life, we don't know about it. The real success stories we know involved routine intelligence and conventional FBI interrogation.

Even if you ignore legality and morality, the new administration policy has generated severe international criticism and no visible benefit. When only 25 guys in the world know about an operation in progress, there is almost no chance you are going to stumble on one of the planners in Pakistan and torture him to get the information you need.

Having grown up in the shadow of nuclear annhilation, I don't see that this is a completely new situation that requires new laws, new courts, and a new morality. They made that claim during the witch hunts of the 1950s, and this sounds to be pretty much the same thing. Bush and his phony conservatives may imagine that they can completely rewrite the rules, but a real conservative would defend the existing rules and systems that have worked until there is a real and not an imaginary reason to change.
11.15.2008 7:36pm
Benjamin Davis (mail):
"Yes, I am aware of the legal argument, although waterboarding and less coercive methods are only arguably torture (see below). This is one reason that I strongly argue that we should change the law. The law can be wrong - it wasn't handed down carved into stones."

Yes you can get a majority of both Houses of Congress to say that torture is not torture and that will be the internal US law. You can go around the world and find cases of parliaments that are willing to say black is white for purposes of allowing a state to do horrendous things to its people or others. That is all domestic law. What you seem to forget is that the United States has international law obligations and a Constitution. I will leave the Constitutional analysis for now because that is just the highest internal law. The US obligations to not torture is an obligation freely accepted by the United States in its treaty obligations (Geneva and beyond) as well as in the relevant customary international law.

So if the United States passes a law that declares that waterboarding is not torture - all that does is change our internal law. If we try to interpret internally international law to say that waterboarding is not torture, that still does not change the US obligation. To put it in words of one syllable it is internal law bullshit that does not extract the US from its international law obligation.

Now any person in the world who we treat under our new standard is subject to the protection of their country and those countries will not give a rat's ass about some internal US law that says what the US is doing to its persons is OK. Of course we can try to intimidate those other countries and our people inside the United States to cower in fear in a police state and acquiesce to torture no longer being torture. But some of us think that is a pretty far stretch from the America we signed up for.

Now in that kind of mindless world rather than the United States being a beacon of human rights it would be saying that things that have been torture since the Middle Ages are not so in the United States. So much for the city on the hill. People like me would do our best to get that law changed back and to again get people here to prosecute the criminals who waterboarded people. Assuming the Constitution was still permitted to act in that setting.


"... the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields."

What this means is that John Yoo (not the Justice Department) wrote a memo. Now the Justice Department has no ability in the Office of Legal Counsel to understand meaningful analysis of international law obligations. That role in prior Administrations was played consistent with tradition by the Office of the Legal Adviser at US State Department. To put this another way, the Office of Legal Adviser actually has the books, not OLC, regarding international law. The then Legal Adviser at State told Yoo that his analysis was seriously flawed. The name of that Legal Adviser is William H. Taft IV, you know a radical left winger in the Reagan Administration was General Counsel of the Department of Defense. Taft was kept out of the analysis process until the last minute. In 36 hours his office developed a long memo that pointed out the flaws in Yoo's analysis.

To put it another way, Yoo's analysis was junk legal analysis. Now you are free to have a lawyer write you crap and then try to hide behind the crap that lawyer writes. That's what the President is trying to do. And I will say that in a court of law that crap will not stand up and both that lawyer and the President can be charged with a crime for what they do. It is called a conspiracy to (fill in the crime). Happens to Mafia heads and their legal hacks all the time.

Also, Secretary Powell and the military types in uniform were arguing strenuously for Geneva to apply as it had over the past 60 odd years.

There is nothing reasonable about this junk legal analysis. I have read it. And plenty of persons have said it was junk legal analysis that your searches will also find.

"Gonzales' memo did, however, say that the terrorist threat rendered "obsolete Geneva's strict limitations on questioning of enemy prisoners.'' Why? Because the United States needed to be able "to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.'' Information remains the primary weapon to prevent a future Al-Qaida attack on the United States."

What this boils down to saying is that our legal obligations are obsolete because we think we need to do something different. Geneva permits you to question POW's, security detainees and civilians it just does not permit you to do the kinds of things that they wanted to do to those questioned with POW's having the greatest protections. And the Taliban had and have POW status. Not that I like that, but that is the law. Now we are free to announce they do not have that status. I can call green yellow and if I have the power insist you accept that, but that is not law that is power. Under the law, the Taliban had and have POW status.

"Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, "outrages upon personal dignity'') that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war."

"Actions necessary to respond" which would be what? This kind of language is more of the euphemism game. Denying POW status to someone entitled to it means simply that you are trying to extract them from the law. Denying Geneva Protections for POW's, security detainees or civilians is simply setting them up in a space of no law - the opposite of what that structure was put in place to do. A state can do that to people but we can also insist that a state comply with its legal obligations. And when in denying we do things that violate those law, we can insist that those who extract people from law be prosecuted for doing things that violate the law.

"This is a rational approach to allow the government to operate without the threat of subsequent persecution by the sort of lawfare you advocate."

"allow the government to operate without the threat of subsequent persecution" - what does that mean? It is more euphemism for meaning the government can keep people outside of law and torture them. Yes, I do not want my government keeping people outside of law that is there to protect them and all of us.

As to lawfare, this is another of those wonderful Orwellian phrases developed in this environment which is to say that someone who insists that the United States comply with its legal obligations and that leaders of the United States be prosecuted when they violate criminal laws is engaged in some kind of war against the United States through law. Hello! Is it too much to ask that your goverment comply with the laws? Is that too cheeky for people to handle?

"he other question was what standards the United States should follow as a matter of policy if the Geneva Conventions did not legally apply. Gonzales recommended that the United States should continue "its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles'' of the Geneva Conventions. Prisoners would receive adequate food, housing and medical care, and could practice their religion. Gonzales advised that as long as the president ordered humane treatment, the military would follow his orders."

I hope you note the profound weakening of the Geneva Conventions in that language. "Humanely" is not defined - another Orwellian word in this setting. "to the extent appropriate and consistent with military necessity" - what does that mean? It means that we do not need to comply with anything if we do not want to. "In a manner consistent with the principles of the Geneva Conventions" - what does that mean. It means nothing. We are not to act consistent with the Geneva Conventions, but rather with the "principles" whatever those are and determined by who. It is patently clear to anyone with any vague knowledge of Geneva law that the phrase that you point to as a phrase of restraint was on the contrary a phrase that eliminates any restraint - consistent with the entire effort in each of the quotes you have used above. You are trying to argue "restraint" from phrases that speak precisely of "no restraints" or to use the colloquial phrase used "the gloves are being taken off."

You are free to see these things the way you are and others are free to see these things the way you do, but I submit that what you think you are seeing is not reality but a chimera. The reality is in the bodies of the people we held and what we did to those bodies is in violation of that law.

"Then, there's the definition of torture and the reason I do not readily accept that term for waterboarding and less strong coercive techniques:

"When the Senate approved the U.N. Convention Against Torture in 1994, it stated its understanding of torture as an act "specifically intended to inflict severe physical or mental pain or suffering.'' The Senate defined mental pain and suffering as "prolonged mental harm'' caused by threats of severe physical harm or death to a detainee or third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality.'' Congress adopted this definition in a 1994 law criminalizing torture committed abroad.""

Ah, the piece de resistance! Now be prepared for this:

1) Yoo's ultimate analysis for what these terms mean is made out of thin air. I analyzed that here. He pulled it right out of his ass and he made his definitions so tight that as long as you do not kill a detainee it is not torture.

2) But, hey we killed detainees! See Dilwar in Taxi to the Dark Side and the numbers of detainees who have simply disappeared.

3) Beyond that, can I dare mention the Uniform Code of Military Justice, Federal Criminal Code, and the rest of those things that speak to what are crimes.

4) The thing about this reservation is that it does not address Geneva Convention obligations which do not have the limiting language, or the International Covenant on Civil and Political Rights, or customary international law.

5) Again, you can keep looking but there is nowhere that you can get that gets you to torture not being a crime.

6) And you are free to try to reclassify things as not torture and that is a mind game you and the President and his henchmen are free to do, but I as an American citizen do not want to play that fast and loose with legal obligations that I think protect me and keep my country civilized. And, I say that these people should be criminally prosecuted.

"If in fact this the law, where is the torture? And let us remember that the Al Qaeda detainees in particular will falsely allege all manner of abuse, as psychological warfare is part of their training and modus operandi."

The people saying that torture has happened are Americans in the Torturing Democracy piece and other places. FBI, Military types and others like that saying what they saw. What has been done to the bodies is the reality. I am not listening to AlQaeda propaganda, I am listening to those decent Americans and others in the world who are saying that this is torture. People like the Internatioanl Committee of the Red Cross who told our leaders that what they were doing were War Crimes.

John, you can side with torturers and I hope you sleep well for it in whatever parallel vision of the world you wish to have. I will never side with the torturers and I will do what I can to make sure that no one tortures somebody in my name as an American citizen. That is one meaningless bullshit power I have maybe but it is what I can do to try to make this world a little more civilized.

"Finally, Ben, I would ask you which of the actions discussed in your report do you advocate? I found that report shocking, to put it mildly."

I have said before and will say again I advocate criminal prosecution of US high level civilians and military general for torture cruel inhuman and degrading treatment. I advocate any of those means that help to vindicate the United States international legal obligations. Maybe it shocks you that people could be pissed off about having loved ones sent into a war on false pretenses but welcome to the real world.

I am sorry that you found that report shocking, but given what you appear not to find shocking about what has been going on I guess that is to be understood. I find it shocking that citizens have to get to a point where they have to think of doing these kinds of things because there government leaders are acting so lawlessly.

And this is going to come back to bite us in the ass when our soldiers get captured in some future war. The definitions we used have already come home to roost in the defense arguments in the prosecution of Chuckie Taylor for war crimes in Liberia. Down in Florida Chuckie Taylor's defense tried to use those memos of good old John Yoo to argue the things he and his thugs were doing in Liberia were not torture. An American jury did not buy that line nor did the Justice department prosecutor.

By the way, the kind of wide latitude and defenses OLC was trying to build in are the exact opposite of what the criminal division would do in the normal world. That got warped by Chertoff in his willingness to go along with torture. There are many participants in the set up of these crimes.

I do not doubt that I can not convince you - so be it. But when it all comes out and you say to yourself "Gee Wow!" don't say that someone did not try to open your eyes on this. And, when your grandkids find out about this and ask what you did? Tell them the truth. You acquiesced along with all those other good Americans who were happy to let the law go to hell so that they could kick some foreign Middle Eastern ass.

It's an old trope - just take a look at the old pictures from the days of lynching. Nothing new under the sun and in fact Judge Robertson in his decision in the Hamdan case that I note in my Northwestern Law Journal Colloquy goes right back there to segregation.

You seem to not think it is possible that the government is doing horrendous things. Man, you do not know your history then - especially domestically - let alone on the international level.

This is the battle we face in every generation - to keep the barbarians in our midst at bay in an effort to maintain the thin veneer of civilization in our country.

Those who fought slavery, those who fought to keep the Union together, those who fought against segregation, those who fought for the working man and woman, those who fought for the women's right to vote, those who fought for civil rights, those who fought to create the United Nations, those who fought to create Nuremberg and on and on and on. That's the tradition I am coming out of and we are and will be relentless in fighting the barbarians among us.

Starting at the top because a fish stinks from its head.

Best,
Ben
11.15.2008 7:40pm
John Moore (www):
@Howard
The Battle of Britain, Stalingrad, Dresden firestorm, Tokyo firestorm, Hiroshima, Nagasaki, Holocaust... In the past we actually faced enemies who posed an existential threat to the US. Today our enemy has no ships, no planes, no ICBMs. Obviously one man with a suitcase nuke would pose a threat, but so far al Qaeda has attacked us with office supplies and plumbing tools

Having grown up in the shadow of nuclear annhilation, I don't see that this is a completely new situation that requires new laws, new courts, and a new morality. They made that claim during the witch hunts of the 1950s, and this sounds to be pretty much the same thing. Bush and his phony conservatives may imagine that they can completely rewrite the rules, but a real conservative would defend the existing rules and systems that have worked until there is a real and not an imaginary reason to change.



In psychology, this is called normalcy bias. Before 9-11, nobody had attacked us with box cutters either, but the action killed thousands. 9-11 woke up some, causing them to recognize that it is foolish to wait for the next kind of disaster before preparing for it.

And please don't drag out the 50's - it's like dragging Hitler into a discussion. And for the record, almost all accused in those "witch" hunt were witches (Soviet agents - either officers or recruited agents). McCarthy did a terrible thing to anti-totalitarians, by providing a hammer that is used to pound any attempts to fight subversion or, today, terrorism. Please don't distort the discussion with this nonsense.

As I have pointed out, there are two new factors that combine to create an unprecedented threat: the relative availability of WMDs and the desire to use them or cause equivalent damage. Please read "unprecedented threat" as "worse than WW-II," although bioterrorism is potentially existential.

Just because they haven't showed up with suitcase nukes doesn't mean they won't. I don't know how familiar you are with WMD technology. Nuclear weapons require a state to produce the fissile material, but the simplest kind (slow assembly HEU) can be built by a few people without deep knowledge, given the state produced HEU. These weapons would have yields in the range of the weapon that destroyed Hiroshima, with radiological casualties and damage orders of magnitude worse than any event in human history.

The primary danger now that Saddam has been removed and Libya has consequently given up its active and effective program (they had complete plans for an HEU weapon - written in Chinese, btw) is loose nukes purchased on the black market by terrorists.

In October, Defense Secretary Gates reported that while strategic and tactical Russian nukes were almost certainly accounted for, the same cannot be said for nuclear land mines and artillery shells. The Russians of course denied any risk but they are hardly credible. Russia, an economically struggling society with a long tradition of corruption and black marketeering, remains a potential source of these weapons for bad actors, including Al Qaeda.

In the longer term, radical Shia Iran, which is not necessarily a rational actor, may provide nuclear weapons or material to the black market or to Hezbollah, or even to Sunni Al Qaeda. North Korea could do the same.

By far the best defense against this threat is vigorous counter-intelligence - exactly the situation where "torture" might become necessary. Other defenses include military actions against the terrorists to disrupt them and reduce their capabilities, and diplomatic and other actions against nation states which may facilitate their actions.

If you don't believe that "a few terrorists" represent an enormous threat to us, please consider the above.

And yes, I grew up in the age of nuclear threat also, living in Albuquerque, NM during the Cuban missile crisis, at the time when ABQ was the primary production and storage site for US nuclear weapons.

As an aside even today, the US, Russia and probably China are in hair trigger launch-on-warning status. The age of nuclear terror hasn't gone away. Russian launches almost happened during the Reagan and Clinton years, due to bad sensor information.


It was not a failure of the FBI, because none of these people were wanted criminals.


It was most certainly a failure of US counter-intelligence, especially CIA and FBI. FBI's criminal justice mentality specifically prevented FBI CI from reading Moussaoui's computer drive, which had lots of information about a 9-11 type attack and would, at the least, have led to much better airport surveillance and a manhunt for the Al Qaeda operators. It is one of the best examples of how the criminal prosecution system, properly constrained by the criminal justice system, is not the appropriate tool for dealing with foreign terrorism.


If aggressive interrogation has saved a single life, we don't know about it. The real success stories we know involved routine intelligence and conventional FBI interrogation.


Reportedly, KSM gave actionable intelligence, as did others subject to coercive interrogation. It is rather hard, however, to show a negative. In other words, how do we prove that lives were saved just because plots were disrupted. The west has repeatedly disrupted Al Qaeda plots based on CI, not criminal, information.

The most important recent action was stopped by MI5 (and probably MI6 and CIA) before destroying up to a dozen jumbo jets over US cities, using an explosive that couldn't be detected by normal airport security. Islamist terrorists had already demonstrated the value of that liquid explosive when two female Chechens used it to simultaneously destroy two Russian airliners in flight.

While technical means are involved in CI, HUMINT is critical, and sometimes that is achieved by coercing terrorists into providing it.


Even if you ignore legality and morality, the new administration policy has generated severe international criticism and no visible benefit. When only 25 guys in the world know about an operation in progress, there is almost no chance you are going to stumble on one of the planners in Pakistan and torture him to get the information you need.


I am certainly not ignoring morality, and am disputing illegality. However, CI efforts rarely produce visible benefit. By their very nature, they are secret. However, if you are keeping a close eye on terrorist networks, CI techniques can indeed work. They recently have stopped a number opf plots with 25 or fewer people aware of them. And remember, we caught KSH in Pakistan and took him for interrogation. We have special forces operating in the tribal areas who have similar objectives.
11.15.2008 9:09pm
John Moore (www):
@Ben,

I realize you feel passionately about this and you must understand that so do I.


The US obligations to not torture is an obligation freely accepted by the United States in its treaty obligations (Geneva and beyond) as well as in the relevant customary international law. ..

Now in that kind of mindless world rather than the United States being a beacon of human rights it would be saying that things that have been torture since the Middle Ages are not so in the United States.


As Yoo wrote, the obligation was accepted with the traditional definition of torture, not the new one. I think that intent is very important.

As for the US being a beacon of human rights... I do not give a rats ass about world opinion, when world opinion is based on propaganda and European idealism. The United States remains something to be proud of, including its actions in the current war. Of course it has made errors and some of its people have gone too far (like those idiots at Abu Ghraib). That can never be prevented in the real world, no matter how many procedural hurdles you give our officials and soldiers.

What I find severely distressing is the ever increasing standards for human rights that we must meet, while our enemies never meet them. I agree we must be morally better than the kind of enemy we have been fighting for the last 60 years. Many of us, especially Vietnam vets like myself, sure as hell resent having all the "atrocity" calumny heaped upon this good nation and its troops. The US, in general (exceptions at times) acts , with good intent or in self defense, and sacrifices its soldiers, not just for the freedom of others, but to protect civilians whose deaths would save the lives of those soldiers. That is noble.

Likewise distressing is insistence of many that we must adhere to treaties that were not designed for this situation and are clearly inappropriate.


As to lawfare, this is another of those wonderful Orwellian phrases developed in this environment


Lawfare is a term used by many of us who observe that, more and more, lawyers are almost as feared by soldiers and intelligence officials as their enemy. Lawfare is the abuse of the legal system for partisan means, and the use of procedural traps to prevent policies with which you disagree.

Maybe it shocks you that people could be pissed off about having loved ones sent into a war on false pretenses but welcome to the real world.


The fact that the troops overwhelming supported Bush and now McCain is an indication that they simply do not see the world as you do. And, in an important way, they are in a better position than you. We could wander off into the weeds of the "false pretenses" but suffice it to say that IMO the soldiers understand what this is all about - certainly the ones I have been in contact with. Likewise their loved ones. The high re-enlistment rates, in the battle-zone, is testimony to their belief in their cause. They are very likely to be "pissed off" at you, not Bush.


And this is going to come back to bite us in the ass when our soldiers get captured in some future war.


Evidence? We fight wars with barbarians and totalitarians. They don't give a whit about these laws or morality or anything else. That has been true since WW-II, without exception (except perhaps Serbia, which wasn't totalitarian, but that war wasn't authorized by either the UN or Congress).

And having been through SERE school, I'm not terribly afraid of the prospect of what an opponent using equal means would do to me.


You seem to not think it is possible that the government is doing horrendous things. Man, you do not know your history then - especially domestically - let alone on the international level.


Spare me! Indeed I do know my history on that subject. And I know the difference between what our government does and what other governments do and the comparison is very favorable.


Those who fought slavery, those who fought to keep the Union together, those who fought against segregation, those who fought for the working man and woman, those who fought for the women's right to vote, those who fought for civil rights, those who fought to create the United Nations, those who fought to create Nuremberg and on and on and on. That's the tradition I am coming out of and we are and will be relentless in fighting the barbarians among us.


I don't think it appropriate to drag the past into this - the segregation, slavery, treatment of Native Americans. One of the wonderful things about America is that we have overcome those failings, and the attitudes that went with them.

It is instructive to note, however, that the treaty you rely on so heavily comes from so far in the past that segregation in the United States was not only legal and common, but widely popular. We have changed a lot since then. Shouldn't the law recognize changes in the world also?

The policies you advocate are contrary to those struggles, all of which except for the UN and unionism were about freedom and equality.

You advocate, from your report and your response:

--Impeachment of Bush and Cheney. If necessary, after they leave office!

--Impeachment of a federal judge for writing a memo that enabled "torture"

--Local, State, and federal prosecutions such as the Brattleboro, Vermont, ordinance that calls for the arrest on sight of Bush and/or Cheney…

--Charge Bush and Cheney with murder of U.S. soldiers who have died in the Iraq and Afghanistan war under state law.

--Use of common law courts … as a means to turn revisionist international law theory by asserting international humanitarian and human rights law violations as common law in state courts prosecutions.

--Having citizens file charges with the police in various countries

--Foreign and International Prosecution of US officials<

--Complaints to licensing boards for professionals who assisted the government

And you make light of "lawfare?"

Those policies are Stalinist. They are about abusing the justice system to achieve political goals. They are about using the system to suppress opponents you don't like by persecuting and terrorising former government officials.

Being familiar with the civil rights movement, you should know the dangers inherent in this sort of prosecutorial abuse.

Consider how your opponents could use these tactics against you: perhaps a bunch of red state prosecutors would charge you under sedition statutes or some other nonsense. You wouldn't be able to get on an airplane without fear of falling into the clutches of a local activist prosecutor, being arrested and having to expend time and money to defend yourself against this harrassment. Would you like that? That is just one of the extra-legal activities which you are advocating!

Would you like to be a government official charged with defending the United States (or any other controversial job), when the rest of your life may have you hounded like Pinochet?

The tactics put lie to the claim of supporting civil or human rights. They are in the tradition of "power makes right."

Those actions do not follow the various noble movements you recommend. The association besmirches their history.

I recognize your right to dissent.

I do not recognize the right of government officials to use their personal offices in the manner you advocate.

That way lies the destruction of our democracy, and potentially civil war.
11.15.2008 10:02pm
John Moore (www):
Correction... I should have called the policies "Nixonian" rather than "Stalinist."
11.15.2008 10:03pm
Benjamin Davis (mail):
John

I understand your passion even if I firmly believe you are siding with the torturers. You remind me of those in Chile and Argentina who talked about "good torture" (what we do) and "bad torture" (what they do). Both broke the law.

"Those policies are Stalinist (Nixonian). They are about abusing the justice system to achieve political goals. They are about using the system to suppress opponents you don't like by persecuting and terrorising former government officials."

Dude! I am a schmuck law professor in Toledo, Ohio. I am a citizen. What levers of power of a Nixonian kind do I have access to? Get real. I can write my Congressperson. I can troll the law and see what is there that a citizen can invoke against his government when it tortures. I can participate in the space of ideas in an environment where what is coming at me is all the sophisticated mechanisms of disinformation. The government can hide the facts asserting national security. The government can hide the bodies. The government can use influence with allies to place people out of my sight and mind. The government can not respond to my letters or speak in euphemisms. The government can hire people for vast sums of money to come in this space and speak for them with the appearance that these are just "private concerned citizens" (I am not casting that aspersion on you - I have seen others who appear to be thinly veiled efforts of that kind.)

I am dependent on those people in the United States government who after retirement come out and tell us ordinary citizens that the government is lying and you need to do something about it. I am dependent on the Pentagon Papers coming out to understand the years of bipartisan lies back in Vietnam.

Those tactics you find so shocking are about using the levers available to citizens to challenge the official torturers.

Fine do not give a rats' ass about world opinion, but remember all those Americans who live abroad and those American troops abroad who have to give a rats' ass about what we do and how it impacts them in those foreign lands.

Prosecutorial abuse includes prosecutorial unwillingness to prosecute crimes. That is also a legacy of the civil rights movement.

How about generals who are unwilling to put their stars on the table? How about when the four top JAGs of the services asked the top lawyer for the Joint Chiefs of Staff to do a complete legal review of all the detainee policy and then Chairman of the Joints Chiefs of Staff Myers blocked that full review at the request of General Counsel William Haynes - one of the architects of the torture policy? Sounds like conspiring to torture to me my friend and conduct not becoming an officer and a gentleman. The top uniformed lawyers go through channels and get blown off. How about Myers having the cojones to resign as opposed to rolling over? Where does that courage of the top uniformed lawyers fit in your analysis of lawfare?

Where is this power I have to do "power makes right"? Who can I order to be put in a never never land on my own word? No one - that is what our government has the power to do and that is what people like me are resisting.

You look at all those things that are listed and seem in shock. These are American citizens saying "Enough!" and looking around to see what they can do to stop it.

I wrote against Mukasey's confirmation because his manner of analysis was IMHO deficient - no real sense of international legal obligations. I have written Mukasey and asked him to initiate prosecutions.

How about General Taguba coming to the conclusion that while he thought he joined the Army he found he was in the Mafia? What about those soldiers going up their chain of command for guidance because they said this was wrong and they get the message back that this was approved? What about those soldiers soldier? Are they engaged in lawfare too?

Give me a break.


"Consider how your opponents could use these tactics against you: perhaps a bunch of red state prosecutors would charge you under sedition statutes or some other nonsense. You wouldn't be able to get on an airplane without fear of falling into the clutches of a local activist prosecutor, being arrested and having to expend time and money to defend yourself against this harrassment. Would you like that? That is just one of the extra-legal activities which you are advocating!"

Hey yes they can do that. They can harass me in a million ways because I am a citizen - they are the government. But I will not be quiet. At the end of it all, we look back and we say "What did I do? What did I fucking do?" That's the question and people like me are saying "We are doing what we can to fight torture in perfectly legal ways." No bombing of buildings. None of the violence. Civil disobedience. Just saying no to torture.

I am happy there are soldiers who are willing to put their ass on the line for me and reenlist. I am happy the ones you know think they are doing the right thing. I have met others who do not. Like Lieutenant Watada who went to the wall in a court-martial for refusing a troop deployment to Iraq because he considered that the War in Iraq was an illegal war. He was willing to take the consequences and the court-martial ended up screwing up and he could not be retried on the grounds of double jeopardy.

I know there are people who hate America and want to drop dirty bombs on us and all the rest of it. I understand the need for HUMINT and all that. But HUMINT from tortured people is bullshit HUMINT. The quote "successes" from the torture that are bandied about - how am I to believe that when the people who do interrogation tell me torture does not work. It is a method for assuring you get confessions to whatever you want. Those stories are stories that the President tells to get you and me to acquiesce in his torture policy rather than challenge him and his sbires.

How is keeping my government from torturing not about freedom and equality? All of the struggles I talk about concern preserving and protecting human dignity.

I recognize that the human dignity of foreigners is not something that a great many people in countries gives a rats' ass about. I guess I know to many people from too many parts of the world to just objectify them - let them be tortured and - if we get it wrong - feel it is OK to say "my bad" as an answer.

My friend, we are five years into this stuff and I am still having to write this stuff to you as you are one more in a long line of people swallowing the party line hook line and sinker.

The true authoritarians are all of you who think the President can do no wrong and acquiesce in his ordering torture.

I, respectfully, dissent and please make sure that is on the record. I also dissent from those members of both parties in the Congressional leadership who did not block the torture. I dissent from being lied to by Congressperson Jane Harman about her knowledge of all this torture back in the 2001-2003 period as a member of the House Intelligence Committee. I dissent from the Dale Rohrbacher's and Duncan Hunter's and Jay Rockefeller's and Nancy Pelosi's who sold out America in their willingness to countenance kicking some ass. I dissent from the Lindsay Graham's and John Kyl's who played games in passing the Military Commissions Act to try to eliminate habeas corpus - one of the fundamental aspects of our civilization. I dissent from the Diane Feinstein's and Chuck Schumer's who rolled over to vote for Mukasey to be Attorney General. Yeah, I dissent from all the authoritarians who throw out what is great about America out of fear. I dissent from all of those persons in the Executive and Legislature who sanction war crimes. I dissent.

As to Judge Bybee, he put his name on the torture memo. I can not imagine it is appropriate for him to be a sitting judge in this country. He only got in because the secrets had been held tight at the time of his confirmation. Now that they are out - he should be out.

If this is sedition, then I speak it fluently. This is patriotism. This is fighting for the country that I want my children to live in.

I can keep this up as long as you want my friend. I will not back down. I respect that you won't either. I just hope that if we were in court, after deliberations, the jury would come down with me. If not, and lost on appeal, I would serve my time even if I still considered I had not done the crime.

I noted you think McCarthy was a good guy. Whatever.

Best,
Ben
11.15.2008 11:33pm
Benjamin Davis (mail):
On that note, I am going to bed. Peace, Ben
11.16.2008 12:24am
John Moore (www):

Dude! I am a schmuck law professor in Toledo, Ohio. I am a citizen. What levers of power of a Nixonian kind do I have access to?

Where is this power I have to do "power makes right"?


I realize it's late, but I thought it was clear that I was referring to the policies you advocate. I have no way of knowing if you have the power to make them happen, although you did write "It's a crime. And we are going to prosecute it."

The policies are Nixonian, to be generous.


Like Lieutenant Watada who went to the wall in a court-martial for refusing a troop deployment to Iraq because he considered that the War in Iraq was an illegal war. He was willing to take the consequences and the court-martial ended up screwing up and he could not be retried on the grounds of double jeopardy


It is unfortunate that the courts martial was screwed up, since he should have paid dearly for his criminal acts. He voluntarily joined the military and then refused to live up to his obligation.



But HUMINT from tortured people is bullshit HUMINT. The quote "successes" from the torture that are bandied about - how am I to believe that when the people who do interrogation tell me torture does not work.


First of all, people who do interrogation take pride in their ability to extract information by their techniques. It is not surprising they would denigrate other techniques. Second, I have been told by people who were subject to torture that it does work. So what am I to believe. Furthermore, it defies history to believe that torture is not useful for obtaining useful information, when it has been used for that purpose for all of time.



I recognize that the human dignity of foreigners is not something that a great many people in countries gives a rats' ass about.

Accusations of inhumanity and bigotry do not help this discussion. Human dignity is important. But engaging or planning massive atrocities reduces one's rights to it. Do you really think that a lot of American's don't care about people who are foreigners? Is that your world view. I've spent a lot of time in a lot of places outside the US, and I certainly consider those people to be just as human as anyone else.


The true authoritarians are all of you who think the President can do no wrong and acquiesce in his ordering torture.


Another accusation. You are presuming to know that we think the President can do no wrong. Nonsense on stilts! But we not only acquiesce in that particular decision, we applaud it.


If this is sedition, then I speak it fluently.


Be serious. Nobody accused you of sedition. Please read more carefully.


I noted you think McCarthy was a good guy

More nonsense. Would you care to support that accusation?

And yes, we can go on a long time. And no, we won't convince each other. But sometimes it's interesting.
11.16.2008 1:11am
John Moore (www):
Oh, and have a good night.

John
11.16.2008 1:12am
Benjamin Davis (mail):
John,
Thanks for the last couple of comments. I agree sometimes its interesting. If you are ever in Toledo, let me buy you a beer or coffee and we can continue discussing. It has been a pleasure discussing this stuff with you. I also appreciate that you appear also to not hide behind a pseudonym.
Best,
Ben
11.16.2008 9:02am
John Moore (www):
Ben,

It has been interesting. Same applies if you are in Phoenix.

I note you also are not using a pseudonym. There are valid reasons for a pseudonym (if I were a Hollywood actor and wanted to still get work, I would most certainly use a pseudonym to avoid being black-listed for my conservatism), I find them annoying outside of those circumstances.

Ciao

John
11.16.2008 12:23pm
Benjamin Davis (mail):
OK dude. Best, Ben
11.16.2008 1:06pm