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CIA Secret Prisons Shut Down Following Media Attention:
ABC News has a fascinating report on how recent media attention pushed the CIA to shut down two secret prisons in Europe that held 11 top Al Qaeda suspects and to move the suspects to a new CIA facility in the North African desert. According to the report, the 11 suspects are: Abu Zubaydah, Ibn Al-Shaykh al-Libi, Abdul Rahim al-Sharqawi, Abd al-Rahim al-Nashiri, Ramzi Binalshibh, Mohammed Omar Abdel-Rahman, Khalid Shaikh Mohammed, Waleed Mohammed bin Attash, Hassan Ghul, Ahmed Khalfan Ghailani, and Abu Faraj al-Libbi.

Related Posts (on one page):

  1. CIA Secret Prisons Shut Down Following Media Attention:
  2. CIA Interrogation Techniques:
  3. Terrorist Plots Thwarted, Secret CIA Prisons:
Cornellian (mail):
If Khalid Shaikh Mohammed and Ramzi Binalshibh disappear down some CIA black hole, never to be heard from again, I won't lose any sleep over it.

I don't recognize the other names, but then I'm not following things at that level of detail.
12.6.2005 12:58am
Andrew Edwards (mail):
Holy missing the point by the CIA.

"These secret torture prisons are getting too much negative press - must be their location that has everyone so mad! Let's move them!"

While I wouldn't shed a tear for Khalid Shaikh Mohammed, I'd also like to note that the reason Cornellian and I both say that is that we've heard evidence against him. Which he hasn't had the opportunity to refute. And we believe him to be guilty of crimes for which he hasn't been tried. Etc.
12.6.2005 1:43am
Katherine:
Negative press matters more in Poland and Romania than in Egypt or Libya or wherever the hell they are now.
12.6.2005 2:23am
Conrad (mail):
Andrew:

Whether he's guilty of crimes is immaterial. He's a commander involved in armed hostilities against the United States. He's no more entitled to be tried than a is a POW. Furthermore, what would be the point of such a trial? Unless you advocate that, if acquited -- which given the classified nature of the evidence against him and the method of its acquisition seems entirely possible -- that he be released.

If you are not advocating that, then you are suggesting that the US gengage in an elaborate, pointless and expensive farce that may harm its efforts against global terrorism. If you are advocating that, then you are deeply, seriously irresponsible.
12.6.2005 3:21am
What We Fought For:
Right on comrad. err... conrad.
12.6.2005 3:37am
llamasex (mail) (www):
Wrongful Imprisonment: Anatomy of a CIA Mistake
German Citizen Released After Months in 'Rendition'

By Dana Priest
Washington Post Staff Writer
Sunday, December 4, 2005; A01

In May 2004, the White House dispatched the U.S. ambassador in Germany to pay an unusual visit to that country's interior minister. Ambassador Daniel R. Coats carried instructions from the State Department transmitted via the CIA's Berlin station because they were too sensitive and highly classified for regular diplomatic channels, according to several people with knowledge of the conversation.

Coats informed the German minister that the CIA had wrongfully imprisoned one of its citizens, Khaled Masri, for five months, and would soon release him, the sources said. There was also a request: that the German government not disclose what it had been told even if Masri went public. The U.S. officials feared exposure of a covert action program designed to capture terrorism suspects abroad and transfer them among countries, and possible legal challenges to the CIA from Masri and others with similar allegations.
link

But he has one of those Arab names, like Khalid Shaikh Mohammed too.
12.6.2005 3:55am
Al Maviva (mail) (www):
The liberal critique of the GWOT insists on three assumptions: 0) AQ are not illegal combatants but are in some category - like EPW or innocent civilians - protected by the Geneva Conventions; 1) We cannot hold captured Al Qaida indefinitely; 2) We cannot "render" them to nations likely to torture them.

Since the Geneva Conventions forbid the criminal trial of people in protected classes who merely fight on the battlefield, criminal trial in the U.S. courts is not an option, unless we can gin up some kind of war crime. A war crimes trial in the Hague for each of these captured fighters is probably an impossibility; regardless, war crimes trials are merely victors' justice and there does not exist an infrastructure to to deal with such persons.

Since we cannot legally try captured AQ, and since we cannot detain them indefinitely per liberal preferences, we must do something with them. The traditional solution to dealing with detainees, is internment in a neutral third nation until cessation of hostilities, or repatriation. I defy anybody here to find a neutral third nation willing to house and look after captured AQ until AQ has ceased to make war on the west, and on fellow Muslims. This leaves the option of repatriation, and to speak quite bluntly the nations from which these fighters come are firm believers in the utility of torture.

What then, are we to do with captured AQ?
12.6.2005 5:28am
Medis:
Al Maviva,

Actually, someone can both be a POW covered by the Geneva Conventions and also an "illegal combatant". Under the Geneva Conventions, POWs can be charged, tried, convicted, and punished for both ordinary crimes and violations of the laws of war. There does in fact exist a set of general procedures to deal with such persons under the Geneva Conventions. See here (Articles 99-108):

http://www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm
12.6.2005 7:21am
Medis:
Oh, I forgot to draw your attention to Articles 102 and 106 in particular. Basically, they say that POWs can be tried by courts-martial as if they were members of the Detaining Power's armed forces. So, in the case of our detainees, the Geneva Conventions effectively incorporate the procedures in the U.S. Manual for Courts-Martial.
12.6.2005 7:27am
Omar Bradley (mail):
I can just imagine some of you bleeding hearts back in 1944 talking about how we need to make sure the Nazi's get fair treatment and that Waffen-SS and Sonderkommandos get a trial and a chance to go before a judge and procure evidence and due process. If you guys were in charge back then things would have been a lot different.

Are you aware that US forces routinely shot on sight nazi scum? no trial, no geneva convention. are you aware of Eisenhower's treatment of Nazi pows after WW2 and the conditions they were in? Do you know that US forces didn't worry about things like collateral damage and int'l law because they were in a life or death struggle with Hitler and Hirohito and there was no time for some of your liberal notions of justice.

Thank god we had real leaders back then like FDR, Give em Hell Harry, Ole Blood and Guts, and MacArthur. Men that knew what was on the line and only cared about one thing-victory. Guys like Truman and FDR weren't afraid to show the Japanese who was boss, to let the Germans know that we will kill ever last woman and child in every last town and village until they surrender. Guys that weren't afraid to do what needed to be done in places like Dresden, Hamburg, Okinawa, Tokyo, Anzio, and elsewhere.

It's attitutde's like those of some I see on here that really make me wonder if we have what it takes to prevail here. Because I can tell you one thing, Osama Bin Laden and Ayman al-Zawahiri haven't spent even one second thinking about treating our guys with the benevolence that you'd show those who are of the same station as Reinhard Heydrich(the Butcher of Prague), Hans Frank, Heinrich Himmler, and Adolf Hitler.

Men like Churchill and Roosevelt would laugh at you, and I can only chuckle at the fact that the very govt and military you condemn and ridicule is all that's standing between you and Bin Laden killing your family and everyone else you care about. The irony is thick among the ungrateful.

I'll close with the wise words of Lt. Col Nathan R Jessup, USMC:

Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Whose gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You weep for Santiago, and you curse the marines. You have that luxury. You have the luxury of not knowing what I know. That Santiago's death, while tragic, probably saved lives. And that my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, then questions the manner in which I provide it. I would rather you just said thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don't give a damn what you think you are entitled to.
12.6.2005 7:59am
Cornellian (mail):
Someone seized from the battlefield during a war can be held until the end of the war, whenever that might be. German POW's during WW2 (for example) don't have to be charged with some crime or released. In fact they haven't committed any crime and therefore they would have all been released other than that small fraction who could be tried for war crimes. And had the latter been tried during the war and given some sentence of imprisonment, they still would not have been released at the end of that sentence if the war had still been going on.

The problem we have today is that war has been declared on the U.S. by a group not subject to the authority of any government and thus there is no one who can or will surrender on their behalf or order them to stand down. Thus even though we are holding such people for the same rationale that we imprison German POW's there is no obvious event that can happen analogous to Germany surrendering that would trigger their release. Similarly, what many of these people have done might happen to constitute a crime in the U.S. (not all of them, since some of them will have committed terrorist acts only against foreigners in foreign countries - not necessarily a breach of US law). The fact that there is no one who can surrender on their behalf and that their actions might constitute a crime under US law does not in any way negate the rationale for holding them indefinitely in the first place.

Suppose someone is correctly held? That is to say the person is a genuine, active, self professed Al Qaeda terrorist like Khalid Shaikh Mohammed. He knew exactly what he was getting into, and he knew that he was joining and acting on behalf of an organization that would never (and probably could never) call off the conflict. I have no problem with holding him indefinitely anymore than I would have had a problem with holding German POW's indefinitely in 1941 even though we had no idea at that time when the war would end. To say they have to be charged with some crime under US law completely misses the point of holding them in the first place. We're holding them because they're at war with the US and would continue to be so if released, not because their actions coincidentally might constitute a crime under US law.

Now suppose the person is wrongly held. He's done nothing wrong but we mistakenly think that he has, or we've mistaken him for someone else. Clearly something has to be done about this situation and I don't suggest there's an easy solution here, but I also don't believe the answer is you completely throw out the rationale I've outlined above and pretend this is nothing other than an ordinary situation of someone committing an ordinary crime on US soil.

The question of how such people are treated while in detention is, of course, an entirely separate issue.
12.6.2005 8:03am
Omar Bradley (mail):
If you ask me, this would all be alot easier if we just killed Khalid Sheik Muhammad today. We've already got everything out of him we're going to get. We should give him the Rudolf Hess(Auschwitz Commandant)treatment and take him out back and shoot him. Same with all these other AQ vermin.. It does us no good holding them indefinitely. We may as well kill them and rid ourselves of the problem.
12.6.2005 8:14am
alkali (mail) (www):
I'll close with the wise words of Lt. Col Nathan R Jessup, USMC ...

Boy, did you ever miss the point of that movie.
12.6.2005 8:18am
Omar Bradley (mail):
To the contrary, my friend, I got the point entirely, and it was disgusting. The fact that you immediately thought to post what you did says more about you than it does about I. And the fact that so many leftists in Hollywood continue to put out anti-military tripe like Jarhead, Courage Under Fire, Three Kings, Syriana, etc... is even more sickening. Especially when movies likes The Great Raid come and go and George Clooney is treated like the 2nd coming of Orson Welles.

What happened to the days when Hollywood had real men in it? Men like Jimmy Stewart that actually put his life on the line and flew bomber missions over Germany. The only missions that guys like George Clooney, Matt Damon, and Brad Pitt go on are the ones to get new tail like Angelina Jolie or Krista Allen. And Clooney calls himself a star? Clooney couldn't even shine Jimmy Stewwart or Henry Fonda's jockstrap that's how self righteous and arrogant he is.

Aaron Sorkin is Jewish. I wonder how many Marines or Army guys died saving members of his family, or killing the animals that were responsible for it. I wonder how many guys died so that a cokehead like Sorkin can make millions ridiculing the people who've done more for this nation than Sorkin and his leftist pals ever could. Sorkin makes me ill, and the fact that he'd make Nicholson out to be the bad gay and let some "glib" pygmy like Tom Cruise come off as some self righteous hero is even worse. I hope Sorkin's enjoying his eightballs with Marty Sheen. If any terrorists show up I wouldn't be surprised if the local marine recruiter hands them Sorkin's address with a map.
12.6.2005 8:51am
Anderson (mail) (www):
People who quote Jack Nicholson like he was a real soldier, can safely be relegated to the same dustbin as those whose argument begins, "The Constitution is not a suicide pact ...."

ABC has some great sourcing from the CIA lately ... recall Prof. Kerr's post linking to their story about approved abuses in these prisons?
12.6.2005 8:53am
Ross Levatter (mail):
Congratulations to "Omar Bradley" for the brilliant satire.
12.6.2005 8:57am
Omar Bradley (mail):
It's good to know that you care more about Khalid Sheik Muhammad than you do the United States Marine Corps. Views like yours make me sick.
12.6.2005 8:58am
Anon1ms (mail):
Oops, something must be wrong with my computer. I thought I had bookmarked the Volokh Conspiracy, but based on what I'm reading, it somehow is calling up LGF.
12.6.2005 9:05am
Medis:
I'm inclined to think that "Omar Bradley" is satire (and if not, he should be).

Anyway, I agree with Cornellian that neither the criminal law nor the laws of war are really well-suited to deal with the long-term detention problem posed by international terrorist groups. What makes the most sense to me is something loosely based on civil commitments for the violently insane (the basic idea--preventive detention designed to protect the public from violence when the potential actor in question is not subject to the ordinary criminal law incentives--being the same).

The basic elements would include procedures and substantive standards for the initial commitment and then the same for regularly-scheduled reviews of the ongoing commitments. Detainees could be placed into this system by both the civilian justice system and the military justice system. So, for example, people captured and detained by the military could be treated as POWs initially, but then these substantive standards and procedures could be applied by courts-martial, at which point the people found to meet the substantive standards could be transferred from military detention to this civil detention. Finally, this system could apply both to foreign and US citizens.

Anyway, I think something along those lines is what Congress should be working on (indeed, it is already long overdue).
12.6.2005 9:11am
dk35 (mail):
I'm wondering why the ABC story isn't getting wider coverage. Doesn't it seem pretty significant?
12.6.2005 9:13am
Anderson (mail) (www):
I'm wondering why the ABC story isn't getting wider coverage. Doesn't it seem pretty significant?

Because most Americans think like "Omar Bradley"?

Actually, though, I think that an appeal to most Americans' better nature would work. It's just that almost no one, in the media or in the gov't, is bothering.

What we've seen since 9/11 is a shocking lack of pride in our own nation, aside from the little flags and yellow-ribbon magnets. We're even wondering whether torture is okay? We have so little pride in our judicial system that it has to be sidestepped? Our system of checks and balances has to be suspended in favor of an unlimited executive?

The overarching theme appears to be a suspicion that liberal democracy (in Ye Olde Sense of "liberal") doesn't really work. Maybe THAT is the debate we need to be having. I would appreciate if those Americans who favor some other system of government would openly identify themselves as such.
12.6.2005 9:24am
Omar Bradley (mail):
Because the vast majority of Americans could care less about how the CIA treats AQ and in all likelihood wishes they were even more brutal.

It's interesting how so many on the left and in the democratic party are willing to go after Bush and Ronsfeld, yet still hold up FDR, Truman, and Marshall as Gods when they killed more Germans in ONE NIGHT in Wurzburg than the total number of muslims Bush and Rumsfeld are responsible for in the past 4+ yrs.

I'm still waiting for Terry Moran and ABC News to do a "special report" on FDR and Truman and the horrors they perpetrated. But I guess they're part of the "greatest generation".
12.6.2005 9:25am
AppSocRes (mail):
Omar Bradley has a point (despite the fact that Rudolph Hess was not SS and died in Spandau prison and despite several lapses in grammar). A father of a friend was a ranger in WW II. Because he spoke fluent French, he spent much time in France before D-Day. He was a guide in the assault on the German guns at Omaha Beach. He received a Silver Star among other awards. The unit he was with during the invasion of Germnany was one of the first to stumble on a death camp. Ordinary soldiers at the time did not know these existed. He hardly ever would talk about the war, but told us once that soldiers in his unit summarily executed any German they found associated with the camp. That included some "nurses".

My father and his brother fought in the Pacific. After reading "Thin Red Line" and later "The Naked and the Dead" I asked him if the incidents in the book involving the shootings of Japanese soldiers were true. He never talked about the war, and was always taciturn, but in a few words he let me know that in war circumstances always trump rules, and people like myself, with no experience of war, had no right to judge the actions of combatants. It was also clear that he did not approve of some things he saw done by other Americans.

We are in a war. More people were killed on 9/11 than at Pearl Harbor. For the eight years of the Clinton administration Al Q'aida killed hundreds of other Americans. Now we are finally fighting back and the same people who let Al Q'aida kill Americans with impunity for eight years are whining about how the necessary war they refused to initiate is not being fought by their absurd -- and mostly made-up -- rules.

There are issues here: In a war like this the innocent are sometimes mistaken for terrorists and there should be procedures developed to prevent this. But, as Saddam's trial is showing, summary executions are not always a bad idea. And, as the valuable intelligence coming from CIA and other interrogations is showing, treating terrorists like terrorists and not POWs or ordinary felons can have salutary and life-saving effects.
12.6.2005 9:28am
Reluctant Imperialist (mail):
Keep pushing, and maybe you can drum up enough public support to get them released! Not that I'm questioning your patriotism, it's perfectly o.k. to mount a campaign for the release of enemy prisoners in a time of war...

Hey, dk35, still supporting the murder of American servicemen? For those who didn't see him do it, yesterday, dk35 rose wholeheartedly to the defense of the following statement on Ramsey Clark, Saddam Hussein's anti-American defense lawyer:

Who are you to say that Saddam Hussein doesn't deserve the best presentation of his case? And why shouldn't Clark do his best to make it clear that American petro-imperialism is to blame for the fascist invasion?

Americans deserve to die for what they did. It's just a happy irony that it will be an American who injects backbone into the resistance and makes sure they survive as an entity. Mr. Clark truly represents the best qualities of America, no matter what Bush's fascists say.

Check the Ramsey Clark thread. Oh well, back to work, enough fun for this morning.
12.6.2005 9:30am
Medis:
AppSocRes,

You seem to be assuming that the laws of war do not acknowledge the relevance of circumstances. Of course, they do. It is true there are some things which are outlawed in any circumstances (eg, deliberately shooting babies), but the lawfulness of other common things (eg, deliberately shooting combatants) depend on the circumstances.
12.6.2005 9:38am
dk35 (mail):
Whether I want any innocent people to die (hint: I don't) isn't too imporatant here.

But, if I understood John McCain correctly on Meet the Press on Sunday, news of US torture of anyone is likely to greater cause more harm (in the sense of leading to torture and murder of American servicemen) than good (in the sense of obtaining information about terrorist plots).

So, is John McCain also anti-American because he doesn't want for us to engage in torture?
12.6.2005 9:43am
Omar Bradley (mail):
Anderson,

Perhaps you've missed all the pro-military and pro-US events and rallies that have been going on the past few yrs. I can see how since the news media never covers them. That's why they were so shocked and awed when more than 62 MILLION(more than had ever showed up before)releected their archnemesis George Walker Bush to 4 more years at 1600 Pennsylvania Avenue. The looks on Dan Rather's and Chris Matthews' faces were beyond value.

The lack of pride also stems from the "pop culture" to use a broad term. Holloywood maintains this Marines=SS dichotomy. In the yrs 1941-1945 Hollywood produced over 1000 pro US, pro military films. Directors like Frank Capra and John Ford put their talents to use with things liek "Why We Fight" and other inspiring works. We had artists like Glenn Miller, Tommy Dorsey, and the Andrews Sisters that roused the populace and filled them with feeling and patriotism. There were countless events and war related activities to involve the public.

Today? Holloywood's produced 0 positive films about 9/11 or Terrorism or Iraq.(I don't count the measley few that are in production-ALL of which are from an anti-US slant) Our Directors like Michael Moore and George Clooney actually put out films that serve to DAMPEN and SAP morale, not boost it. (If it was up to me Moore would have been arrested on charges of Treason, surely he qualified under any fair construction of the Constitution). Capra must be spinning in his grave. Ford weeping to see how guys like Clooney and Moore have perverted a fine institution.

Our music stars like Eminem and Green Day are the exact opposite of the stars of the 40's. Did Frank Sinatra come out in a wheelchair and a pipe and a pig mask and play 2 hours of songs that compared FDR to Hitler and made him out to be an imbecile? Did the Andrews Sisters say they were ashamed to be Americans and pose on the cover of Look magazine with "FDR for Oil and Greed" shirts?

The nation as a whole was much more cohesive, much more unified in the war effort. Do you think something like the Smith Act could be passed today? Do you think FDR would get away with 3000+ dead on D Day today? The Howard Dean's and Jack Murtha's would have out calling for him to "bring the boys home". It's a goo dthing Murtha wasn't around when we were on Guadalcanal or Iwo Jima, he'd have had us out of there by sun up. He'd surely have called for Eisenhower's cashiering after the Huertgen forest campaign in the fall of 1944.

The bottom line is that the nation as a whole just hasn't rallied to the caus elike we used to. That's partly the WH's fault. But it's more the fault of a media/pop culture/and leftist/liberal mindset that ever since about 1968 has continued to portray the US as the source of all evils in the world and our leaders as no better than the Mao's and Stalin's of thsi world. When the people have been filled with so much anti US and anti military propoganda all these years, it's no surprise that we're having the results we are.
12.6.2005 9:46am
Al Maviva (mail):
Medis, you still dodge the argument entirely.

Merely fighting is not a crime if the captured AQ fall into a class of prisoners protected by the GC's, other than its stipulation to treat unclassified individuals in a decent manner. Yep, you can try them for rape, or robbery, or embezzelment or whatever, if they are stupid enough to commit those crimes, but if you understand them to fit into a protected class, then their car bombings and beheadings and mortarings and so forth are necessarily mere acts of war, and they cannot be put on trial for them any more than our soldiers can be put on trial for murder, for acts commmitted during an assault. Again, if somebody has protected status under the G.C.'s, you cannot try them for merely fighting, that is clearly prohibited.

Second, I fail to see where war crimes have been committed here by AQ that would justify a war crimes tribunal - the exact nature of which isn't quite clear to me. Are we talking the strict victors' justice of the Nuernberg Tribunal? Or the victors justice dressed up in Euro procedural trappings in the Hague? Or a trial in the execrable ICC in Rome, which appears to exist solely for the purpose of giving anti-American groups a forum for indicting U.S. and Israeli officials?

Congress has been asleep on the job as Sen. Lindsey Graham points out in today's Wash Post, but in spite of his self congratulatory backslapping they still haven't suggested a statute to deal with this situation. And do you really think that the Administration would go to all this trouble, especially with low level detainees, if they believed that there were readily available solutions to this problem?
12.6.2005 9:46am
Omar Bradley (mail):
Anderson,

Perhaps you've missed all the pro-military and pro-US events and rallies that have been going on the past few yrs. I can see how since the news media never covers them. That's why they were so shocked and awed when more than 62 MILLION(more than had ever showed up before)releected their archnemesis George Walker Bush to 4 more years at 1600 Pennsylvania Avenue. The looks on Dan Rather's and Chris Matthews' faces were beyond value.

The lack of pride also stems from the "pop culture" to use a broad term. Holloywood maintains this Marines=SS dichotomy. In the yrs 1941-1945 Hollywood produced over 1000 pro US, pro military films. Directors like Frank Capra and John Ford put their talents to use with things liek "Why We Fight" and other inspiring works. We had artists like Glenn Miller, Tommy Dorsey, and the Andrews Sisters that roused the populace and filled them with feeling and patriotism. There were countless events and war related activities to involve the public.

Today? Holloywood's produced 0 positive films about 9/11 or Terrorism or Iraq.(I don't count the measley few that are in production-ALL of which are from an anti-US slant) Our Directors like Michael Moore and George Clooney actually put out films that serve to DAMPEN and SAP morale, not boost it. (If it was up to me Moore would have been arrested on charges of Treason, surely he qualified under any fair construction of the Constitution). Capra must be spinning in his grave. Ford weeping to see how guys like Clooney and Moore have perverted a fine institution.

Our music stars like Eminem and Green Day are the exact opposite of the stars of the 40's. Did Frank Sinatra come out in a wheelchair and a pipe and a pig mask and play 2 hours of songs that compared FDR to Hitler and made him out to be an imbecile? Did the Andrews Sisters say they were ashamed to be Americans and pose on the cover of Look magazine with "FDR for Oil and Greed" shirts?

The nation as a whole was much more cohesive, much more unified in the war effort. Do you think something like the Smith Act could be passed today? Do you think FDR would get away with 3000+ dead on D Day today? The Howard Dean's and Jack Murtha's would have out calling for him to "bring the boys home". It's a goo dthing Murtha wasn't around when we were on Guadalcanal or Iwo Jima, he'd have had us out of there by sun up. He'd surely have called for Eisenhower's cashiering after the Huertgen forest campaign in the fall of 1944.

The bottom line is that the nation as a whole just hasn't rallied to the caus elike we used to. That's partly the WH's fault. But it's more the fault of a media/pop culture/and leftist/liberal mindset that ever since about 1968 has continued to portray the US as the source of all evils in the world and our leaders as no better than the Mao's and Stalin's of thsi world. When the people have been filled with so much anti US and anti military propoganda all these years, it's no surprise that we're having the results we are.
12.6.2005 9:47am
Omar Bradley (mail):
AppSocRes,

Thanks for your support.

As you may know, there were 2 Rudolph Hess's. The one you're thinking of parachuted in to England in a secret peace overture and died in Spandau. The other Hess was head of Auschwitz and was shot on sight when the camp was liberated. I can see how you'd get them confued, though.
12.6.2005 9:49am
AppSocRes (mail):
Medis:

I understand your point, but in the two specific examples I cited, while most rationally moral people would approve of the first and some might understand the second, gross violations of the western rules of war were committed. These things are a part of war and sometimes a neccessary part.

The old rule that a besieged city that refuses to surrender is subject to rapine and pillage seems immoral on its face, but the misery it has caused is probably far outweighed by the lives it has saved. Likewise, harsh and summary treatment of terrorists in the long run will prevent and deter indiscriminate mass-killings of civilians.

John Keagan has a very good chapter on the rules of war and their violation in his book "The Face of Battle". He cites at least one instance of a gross violation of the rules of war during WW II, that was, in his opinion, understandable even if reprehensible. The behavior of the British soldiers in this instance was very much, albeit unknowingly, in line with the medieval rules governing siege and reprisal.
12.6.2005 10:03am
DK:
If it is true that US Soldiers summarily executed Germans working at concentration camps, then that is a shame. Guards working at concentration camps deserve to die in shame, not in anonymity. Their families should be left not with the belief that they died "in service to the fatherland" but with the experience of seeing them tried, convicted, and executed for war crimes. There is a reason that people describe murderers who kill themselves as having "cheated justice."

Likewise, I would prefer as many Al Qaeda terrorists as possible be convicted in open court. Unfortunately, though, even if the US decided to prosecute them openly, the cultural divisions between the US and Europe and the West and Islam prevent the possibility of a new round of Nuremberg trials -- i.e. universally-accepted trials following procedures recognized as fair and capable of ordering execution. [Yes, some people may criticize Nuremberg, but it had much broader acceptance at its time than any imaginable trials would have today.]
12.6.2005 10:14am
Omar Bradley (mail):
AppSocRes,

Thanks for your support.

As you may know, there were 2 Rudolph Hess's. The one you're thinking of parachuted in to England in a secret peace overture and died in Spandau. The other Hess was head of Auschwitz and was shot on sight when the camp was liberated. I can see how you'd get them confued, though.

Medis,

You talk of killing babies(by the way, I assume from your concern about babies you're obviously pro life and anti abortion. or are nazi babies more important than American ones?).

Surely you must know that those liberal democratic Gods FDR and Truman consciously and deliberately were the Commander in Chief's of militaries that by even a conservative estimate purposely killed over 1,000,000 women and children. Was FDR a war criminal for ordering the bombings of Dresden, Hamburg, and Wurzburg? Were Marshall, MacArthur, and Eisenhower war criminals for their actions in places like Tokyo, Aachen, and the Falaise Pocket? Was Truman a war criminal?

Has ABC News or Chris Matthews done any shows on FDR and Truman and how more than 400,000 americans died and over 1,000,000 were wounded because of them. Do they talk about FDR and Truman's deals with Stalin like Michael Moore and Jon Stewart showed Bush with King Abdullah of Saudi Arabia? The irony that a jew like Jon Liebowitz(Stewart's real name), has been bashing Bush for the past 4 yrs when he's been out there trying to fight the very terrorists that would kill not only every last jew but Stewart's very wife and children without a second's hesitation is so think that you can cut it with a knife.

I remember the BS that guys like Stewart and Leno and Letterman spewed in the days and weeks after 9/11. I remember Stewart almost coming to tears and talking about how shaken he was and how horrible 9/11 was. It was all a joke. Stewart doesn't care. How about we send Stewart out with the Marines for a mission or two? Can you imagine Stewart cracking wise about Roosevelt during the Battle of the Bulge? Can you imagine openly mocking and laughing at Marshall and Truman?

In war there are no circumstances. There's victory and there's defeat. There's conquest and there's submission. Bin Laden and Zarqawi have gone all in. Are you ready to call?
12.6.2005 10:15am
Land (mail):
Rudolph Hoess was the camp commandant at Auschwitz. He was not shot on sight when the camp was liberated. In fact, he was arrested in 1946 by Allied military police and handed over to the Polish. Following a trial, he was returned to Auschwitz and hanged outside the entrance to the gas chamber.

I typically find that someone who can't be bothered to research even the most rudimentary historical facts most likely has not spent sufficient time considering the arguments that the usually misstated facts are marshalled to support.
12.6.2005 10:15am
Omar Bradley (mail):
You're correct. Hoess was tried. My mistake, I must have confused him with another kommandant. Pardon me for getting my Nazi's mixed up, I really and try make sure I give them their proper respect. The larger point is that many nazi's were shot on sight or taken out and hanged. There were even examples of German civilians being forced in to labor at concentration camps and being to bear witness and suffer retaliation from jews and other survivors. I guess the ACLU would have been filing suit on behalf of these Nazi's if they were around today(although maybe not since the ACLU has communism in its background they were probably against Germany).

here's his testimony. why don't we get statements like this from KSM? Why is everything done in secret? If you're going to keep him locked up, you may as well get some PR by letting the public know how bad he is.

People like KSM and Zubaydah are no different from Hoess or Eichmann. I have no sympathy for them whatsoever. They deserve no justice but the justice of an eternity spent in the fires of the deepest level of hell

Rudolph Hoess(this the type of person that the left wants us to give trials to and geneva convention rights):

RUDOLF FRANZ FERDINAND HOESS, being first duly sworn, depose and say as follows:

"I am forty­six years old, and have been a member of the NSDAPI since 1922; a member of the SS since 1934; a member of the Waffen­SS since 1939. I was a member from 1 December 1934 of the SS Guard Unit, the so­called Deathshead Formation (Totenkopf Verband).

I have been constantly associated with the administration of concentration camps since 1934, serving at Dachau until 1938; then as Adjutant in Sachsenhausen from 1938 - 5/1/1940, when I was appointed Kommandant of Auschwitz. I commanded Auschwitz until 12/1/1943 and estimate that at least 2.5 million victims were executed and exterminated there by gassing and burning, and at least another half million succumbed to starvation and disease making a total dead of about 3 million. This figure represents about 70-80% of all persons sent to Auschwitz as prisoners, the remainder having been selected and used for slave labor in the concentration camp industries; included among the executed and burned were approximately 20,000 Russian prisoners of war (previously screened out of prisoner-of-war cages by the Gestapo) who were delivered at Auschwitz in Wehrmacht transports operated by regular Wehrmacht officers and men. The remainder of the total number of victims included about 100,000 German Jews, and great numbers of citizens, mostly Jewish, from Holland, France, Belgium, Poland, Hungary, Czechoslovakia, Greece, or other countries. We executed about 400,000 Hungarian Jews alone at Auschwitz in the summer of 1944.
12.6.2005 10:30am
Houston Lawyer:
Aside from the issue of what we should do with the suspected terrorists we have captured, it appears to me that the people who have disclosed the existence of these secret prisons have surely violated some secrecy laws. If a special prosecutor can spend two years with a grand jury probing the Valeria Plame case, why not this one?

It looks like various factions within the CIA are working against the other parts.
12.6.2005 10:31am
Andy Freeman (mail):
> US torture of anyone is likely to greater cause more harm (in the sense of leading to torture and murder of American servicemen)

That's the theory, but is there any supporting evidence?
12.6.2005 10:45am
Omar Bradley (mail):
Houston Lawyer,

Great point. It would seem that this is a much more serious leak than with Plame. Where's Chris Matthews?

The idea that by being nice to AQ, they'll be nice to us is hogwash. McCain is getting up in years, and we don't know what 5+ yrs in a Norht Vietnamese prison does to a guy's mind.
12.6.2005 10:51am
Anderson (mail) (www):
AppSocRes, I'm terribly sorry that the father of your friend was a war criminal, but I can't see how that affects the argument.
12.6.2005 10:59am
Salieri:
Omar Bradley,

The purpose of trials is absolutely not to be "nice to AQ." The entire point of trials is that you can separate actual AQ members from innocents who are wrongfully arrested.

Now you can argue that trials aren't practical, or you can argue that it isn't worth the risk of releasing some AQ members to save the wrongfully imprisoned innocents but please stop repeating this nonsense that "the left" wants to be nice to our county's enemies.
12.6.2005 11:01am
Commenterlein (mail):
Omar,
I know a fair bit about German history and the history of the second world war. You are talking complete nonsense and you are making stuff up. It was our humane treatment of German PoWs that made it possible for us to quickly integrate Germany into the western world and to convince the German public that we were indeed the good guys.

The fundamental point that fire-breathers like you fail to grasp is that as the "good guys" we should worry all the time about how much power we are willing to give to unaccountable government representatives (including our armed forces) to declare people "enemy combatants" or whatever the fashionable term happens to be, and to hold them without trial and to mistreat them as they see fit. It is entirely the idea of democratic and legal checks and balances on government power that distinguishes (or should distinguish) us from, for example, the Russians' behavior in Chechnya. The fact that you don't care the least bit about this, and call others who do "sickening" simply shows that you have understood nothing of the spirit underlying the constitution and the bill of rights. Sickening indeed.
12.6.2005 11:06am
Medis:
Al Maviva,

Whether POWs could be put on trial for the things you are describing would mostly depend on the circumstances (although beheading captives in the circumstances in question would not be covered). They would generally have immunity under the Geneva Convention for using explosives or mortars to attack military targets, just like our POWs would. Conversely, deliberate attacks on unarmed civilians would not be covered.

I'm not sure why you are bringing up special "war crimes tribunals". As I noted above, POWs can be tried in courts-martial for both ordinary crimes and international law crimes (including crimes under the Geneva Conventions themselves). The basic rule is just that they have to be tried in the same courts and with the same procedures as we would use to try someone in our own armed forces. Hence, these trials would have to be conducted pursuant to the U.S. Manual for Courts-Martial.

Finally, I'm not sure what the Administration is thinking about all this. But it is simply untrue that you can't try POWs for ordinary crimes or crimes against the laws of war in courts-martial under the Geneva Conventions.

AppResSoc,

I don't know enough of the details to ascertain whether I would approve of or "understand" either of the events you describe. But obviously, one can understand why someone does something without approving of it.

In general, you seem to assume that cost-benefit analysis would favor a return to "medieval" rules of war. But I would note that the modern rules of war were developed in part in response to what happened when we combined the old rules of war with modern military technology.

In general, it is easy (and often emotionally satisfying, at least to some) to imagine that brutal action will have positive net consequences, but our experience with war is that the unintended consequences of brutality tend to be far worse than we expect. The rules of war are in that sense very pragmatic: they represent the accumulated wisdom of those who actually experienced war and who recognized when "understandable" conduct in war nonetheless became pyrhhic. I would not lightly turn away from that accumulated wisdom based on mere speculation that this time, the benefits will outweigh the costs.
12.6.2005 11:12am
A.S.:
"Aside from the issue of what we should do with the suspected terrorists we have captured, it appears to me that the people who have disclosed the existence of these secret prisons have surely violated some secrecy laws. If a special prosecutor can spend two years with a grand jury probing the Valeria Plame case, why not this one?"

Huh?

How could prosecuting the people who leaked the existence of the secret prision possibly hurt the Bush Administration?

I mean, really, that's the purpose of all of this, right?
12.6.2005 11:22am
Houston Lawyer:
Regarding our treatment of POWs during WWII, I can remember, as a child, having my parents explain to me that the man at church with the accent was a German WWII POW. He, like many others, was shipped stateside during the war for safekeepping. His treatment here was so good that he decided to stay after the war. I believe our treatment of Iraqi POWs from the first Gulf war was equally as good. Men fighting in uniform are owed this treatment.
12.6.2005 11:22am
An American in Germany (mail):
The case of Kahled al-Masri is going to be a big problem for the United States, and did not get better today when he arrived at the Atlanta Airport and was promptly sent back to Berlin, without any explanation. He had been flown to the US by the ACLU to participate in a press conference announcing his suit against the US. Al-Masri, a German citizen, is, at this point, very well known to all relevant US authorities, having already had him imprisoned 23 days long to investigate and two years since to further investigate. Sending him back to Germany at this point can only be viewed at best as playing politics with an individual visitor from an allied nation, and at worst, as very badly managed PR.

The bigger problem, however, may be in mending the relationship of the US to Germany. The Schoeder government now is clearly shown to have bent over backward in cooperating in the War on Terror. Schoeder sent troups to Afghanistan, breaking the pacifist tradition of both government parties and allowing his government to face a no confidence vote. Germans have died in Afghanistan. German facilities, intelligence, and airspace have been shared, seemilngly without restriction. And the Schroeder government now has been shown to have turned a blind eye to the US when asked.

But the Schroeder government sinned in the eyes of the Bush administration by not sending active forces to Iraq. Former Foreign Minister Joschka Fischer said famously to Secretary Rumsfeld that "Sir, I am not convinced" when Rumsfeld tried to make his case for war in Iraq at that point in time and on basis of a connection to the War on Terror. This reflected a broad consensus here -- so broad as to include the Green Fischer and the conservative Peter Schall-LaTour -- that if one wanted to fight Islamic terror, one had to fight the Islamicists, not to create circumstances that would seed the creation of more Islamicists. Now Fischer and the Schroeder government appear to be more correct in their evaluation of the data than the Bush administration. Schroeder is now out of office, but his Social Democrats remain in government, and the new coalition's foreign policiy has begun under the cloud of these secret prisons, with the al-Masri case not about to disappear.

It's obvious that I have no great affection for the Bush administration, but I don't like seeing my government in bad light. I honestly have to wonder who in the administration came up with the "bright" idea of sending al-Masri back? If anyone in the administration had some PR savvy, wouldn't they have insisted on giving the guy a large but quiet settlement?
12.6.2005 11:25am
Humble Law Student:
Medis,

Time to enlighten you a little bit.

All of your references to classifying AQ detainees as POWs are completely misguided, and let me show you why.

The AQ detainess aren't POWs, because they don't adhere to the Geneva Conventions guidelines to qualify for such protections. They don't wear uniforms, don't have a recongized and legitimate command structure, etc... Practically everyone who knows anything on the subject knows that.

Your referenes to the 1949 Geneva Convention are irrelevant, because all of the sections you reference only pertain to POWs, which AQ detainees most definetely are not.

Therefore, they aren't and can't be POWs. What are they then? I suggest you look at Ex Parte Quirin. There the US Supreme Court helped delieniate the differences between a lawful combatant (POW) and unlawful combatant (spies, and how AQ detainees).
12.6.2005 11:39am
Al Maviva (mail):
Medis, I'll say it again more slowly: if the captured AQ fall within a protected category under the Geneva Conventions, then they cannot be tried for fighting against us. There is no legal basis for doing so. "war crimes" involve things like rape, looting, and murder. They do not entail mere killing, since mere killing is what soldiers do to each other.

Further, the assertion that there is some basis in the UCMJ for trying captured AQ for merely fighting against the US is ludicrous. If they are in a GC protected class, we cannot do so unless they do something outside the norms of war, and the last time I checked, okay, maybe beheading is off limits, but bombing, mortaring, shooting and stabbing people to death is pretty much what war is comprised of. What have they done - failed to don uniforms? Well, perhaps we could dole out some non-judicial punishment...

You still haven't answered the question, because trial of captured AQ under the UCMJ isn't available as an option based on your premises that AQ are covered persons under GC, and repeatedly insisting that it is a viable option doesn't make it so.

Assume for a minute that we start trying captured AQ in courts martial. Then the crimes AQ would be charged with, the only things that appear to be not immediately and laughably extralegal, appear to be articles 105 (EPW misconduct) and 106 (spying); or perhaps 118 (murder) and 119 (manslaughter). Are you suggesting we try captured AQ for, what, attempted manslaughter, and send them to Leavenworth? Or in the case of murder and spying, are you okay with field grade officers sentencing capture AQ to death - since soldiers would be eligible for the death penalty? I think that the Geneva Conventions expressly disapprove of such trials, but go ahead, let's hear your argument.
12.6.2005 11:43am
Observer (mail):
Where is the MSM outrage at the disclosure of this CIA activity? This leak clearly hurt our national security by jeopardizing the CIA's ability to take out and extract information from al Qaeda operatives. Where are the New York Times editorials demanding a leak investigation?
12.6.2005 11:46am
Omar Bradley (mail):
Commenterlein,

Do you deny that the US killed vast numbers of German civilians including women and children, in places like Dresden, Hamburg, Wurzburg, etc...? Do you deny that those killings were deliberate? Do you deny that if the US repeated this action today in Iraq that Bush would be denounced by the left as a war criminal and immediate calls for his impeachment would begin?

Do you deny that the US killed vast numbers of Japanese civilians as a result of firebombing Tokyo, including women and children? Do you deny that if the US repeated this action today in Baghdad that Bush would be denounced by the left as a war criminal and immediate calls for his impeachment would begin?

Do you deny that there were many instances of German civilians being pressed in to service at Concentration Camps and forced to "clean up" the mess their herrenvolk had left?

Do you deny that many Nazi's were shot on sight?

Here's quotes from noted WW2 Historian Stephen Ambrose on US treatment of German POWs:

Our first conclusion was that Mr. Bacque had made a major historical discovery. There _was_ wdiespread mistreatment of German prisoners in the spring and summer of 1945. Men were beaten, denied water, forced to live in open camps
without shelter, given inadequate food rations and inadequate medical care. Their mail was withheld. In some cases prisoners made a "soup" of water and grass in order to deal with their hunger. Men did die needlessly and inexcusably. This must be confronted, and it is to Mr. Bacque's credit that he forces us to do so.

He points to warehouses in Germany full of food. He says that the Red Cross had food available. One of his most daming pieces of evidence is that a train from Geneva loaded with food parcels sent by the Red Cross to feed German prisoners was forced to turn back.

This is shocking - food was available, men were hungry and American officers ordered the train to return to Geneva.

In his conference report on the food situation in Germany, James Tent of the University of Alabama - Brimingham says there was no question that there were severe shortages. Still, as Mr. Tent points out, there was food stocked in warehouses that was not distributed to prisoners living on a near-starvation diet.

Mr. Cowdrey's conclusion, strongly supported by another conference participant, Maj. Ruediger Overmans of the German Office of Military History in Freiburg (who is writing the final volume of the official Germany history of the war), is that the total death by all causes of German prisoners in American hands could not have been greater than 56,000

Nevertheless, Mr. Bacque makes a point that is irrefutable: some American G.I.'s and their officers were capable of acting in almost as brutal a manner as the Nazis. We did not have a monopoly on virtue. He has challenged us to reopen the question, to do the research required, to get at the full truth

April 17, 1945: The Americans opened their enormous Rheinberg Camp, six miles in circumference, with no food or shelter whatsoever. As in the other big "Rhine meadow" camps, opened in mid-April, there was initially no latrines and no water. In some camps, the men were so crowded they could not lie down. Meanwhile, at Camp Kripp, near Remagen, the half-American Charles von Luttichau determines that his German comrades are receiving about 5% as much food as their captors." Complaining to the camp commander, HE SAID: ''Forget the Geneva Convention. You don't have any rights."

Years of talking to my grandfather and others of his generation who were in Europe at this time, show plenty of anecdotal evidence that death rates in the holding camps were extremely high. In the initial months after capture, there would have been little else to do with them other than pen them up Andersonville-style. With the lack of food many German prisoners did perish from malnutrition and exposure to the elements. This hardly seems controversial.

It seems you are the one who is mistaken

And was it our humane treatment that made West Germany think we were the good guys, or was it the fact that we were the only thing that stood between them and Stalin?

Do you deny that Harry Truman dropped the A Bomb on Japan and was commander in chief while the US laid waste to much of North Korea(their casualties and damges were extremely high)?
12.6.2005 11:49am
Humble Law Student:
Pertaining to German POWS

There is some truth to both sides that that have been presented here. On the home front, the German POWs were in fact treated quite well. Many Blacks complained, quite legitimately, that the German POWs received better treatment than they did.

In Europe though, it wasn't so clear cut. There several documented instances of US soldiers killing Germans who had surrendered. However, such is war, not that I am excusing it.

If Americans are going to get so excised over the a few AQ detainees that get slapped around, then maybe you should set your values straight. What we did to Germany and Japan during WW2 is much, much worse than the mild mal-treatment our detainees receive. My father grew up in Germany during WW2, and he remembers day after day seeing the massive bomber groups of B-17s streaking overhead to bomb a nearby rail junction. The only problem was that the railroad junction was in a moderate sized town. The whole town was obliterated several times over to get a relatively small porttion, namely the junction.

He harbors no ill-will to the US. In fact, he works for the US government and was instrumental in the development of the guidance systems for the AMRAAM, GBU-15, and other weaponry. He passionately loves America.

If he can love America for what we did to Germany, then I am hardly worried about tossing around a few AQ suspects. The only reason that our current actions hurt our image, is because a few cowardly Dems and peaceniks use every opportunity to bash America.

If only you all had been alive in WW2 and done your protestations then. You probably would have all been thrown into prison as you rightly should.

But, of course, now we are more "civilized" so we have to put up with your defeatism and Anti-Americanism.
12.6.2005 11:51am
Humble Law Student:
Okay, so I exagerate when I say you would have been thrown in prison. However, you would have been rightfully ignored.
12.6.2005 11:54am
Anderson (mail) (www):
Schroeder is now out of office, but his Social Democrats remain in government, and the new coalition's foreign policiy has begun under the cloud of these secret prisons, with the al-Masri case not about to disappear.

Right, the timing is unfortunate for Merkel--practically her first issue on the job is displaying whether she's going to be an American lap dog or not.

American in Germany, if you see any poll numbers on the Germans' reactions to that case, please pass 'em along. I am wondering how many Germans are wishing the CIA would incarcerate more ethnic Arabs residing in Germany.
12.6.2005 12:03pm
Mr. X (www):
I think there's an error in the post headline. What Orin meant to say is "CIA Secret Prisons Moved to Less Popular Countries Following Media Attention."

Yours truly,
Mr. X

...feeling a little ill...
12.6.2005 12:32pm
Huck (mail):
Polls in eight European Countries show very high disapproval rates of the populaces towards secret CIA prisons.

60% in Germany.

By the way:

Spiegel (english)
12.6.2005 12:33pm
Aaron:
Let us begin from first principles:

There can be no Prisoners of WAR because, contrary to popular opinion, CONGRESS NEVER DECLARED WAR!!!

This is a legal blog--can we at least get the law right?

Our president is using troops to conduct foreign operations against "enemies", as is his right as CINC. However, we have not formally declared war. Open hostilities between nation states were never declared.

So what we have, is in essence, the use of the military as uber-law enforcement. And, in America, law enforcement must follow certain rules.
12.6.2005 12:53pm
A.S.:
"There can be no Prisoners of WAR because, contrary to popular opinion, CONGRESS NEVER DECLARED WAR!!!"

Aaron is not a long-time reader of this blog, I take it.

Aaron, EV argued (IMO, persuasively, nay, defintively) against that notion, among other places, here (keep scrolling).
12.6.2005 1:02pm
Seamus (mail):

Rudolph Hoess(this the type of person that the left wants us to give trials to and geneva convention rights)


Omar conveniently omits the fact that Hoess *was* given a trial (at which he was convicted and sentenced to death).
12.6.2005 1:08pm
Omar Bradley (mail):
Hoess wasn't tried in some US Court with an ACLU lawyer and geneva convention protections. He was captured by the Russians, and handed over to the Poles for a trial. Now, I ask you, how fair was that trial? I'd wager Saddam is getting a fairer trial. Hoess had no trial in a ny real sense of the term.

I clearly was referring to a fair trial and geneva rights and all the things the ACLU and the left is asking for people like Hamdan and Rasul and at Gitmo.
12.6.2005 1:13pm
Commenterlein (mail):
What would it take for the fire-breathers here to understand that the issue is not whether some AQ operatives are "slapped around" (or tortured to death), but whether our government, without any checks or legal review, can declare anyone anywhere to be an enemy combatant, and have the person kidnapped and whisked away to some secret prison to be tortured?

Conservatives, at least the intellectual ones, used to be extremely distrustful of unlimited government power. Please remember that governments screw up more often then they don't. This means inevitably that a very substantive percentage of the "enemy combatants" are perfectly innocent, and are now being mistreated without any recourse to judicial review. Supporting this is not conservative. Calling people who try to defend the values of this country "democrat defeatists" or other such nonsense is the opposite of conservative.
12.6.2005 1:17pm
Commenterlein (mail):
Humble Law Student,

It is obviously true that there were instances of German PoWs being mistreated by soldiers - in a war, bad stuff happens. Similar and worse things happened in Vietnam. The crucial difference is that these acts happened against official US policy, and that in several instances the perpetrators were court martial led.

It is shocking to me that practices like water boarding, which did get US soldiers court martialed during the Vietnam War, are now official US policy. We have come a long way under Bush, and I find the number of "conservatives" applauding the development appalling.
12.6.2005 1:29pm
Medis:
Humble Law Student,

Actually, if you look back, you will see that I was just informing Al Maviva about what the Geneva Conventions allow us to do with POWs. I wasn't taking a stand on whether captured members of AQ are in fact entitled to POW status (that actually depends, once again, on the circumstances--people we have captured in Afghanistan or Iraq may well have fulfilled the requirements for POW status, or they may not have).

Of course, we could just decide to treat our GWOT military detainees as POWs even if they are not entitled to POW status. As I also discussed above, in my view this would not be a good long-term solution, and we should instead craft a new legal regime to deal with such detainees. In any event, in response to Al Maviva, I was just talking about the implications of POW status, not suggesting who is entitled to such status.

Al Maviva,

We agree that POWs have immunity for certain things that would ordinarily be crimes, such as shooting at enemy soldiers during a battle. But that immunity is limited in a number of ways. For one thing, it depends on the context. So, while you can shoot (or behead, for that matter) an enemy solider in battle, you can't shoot or behead a captured enemy soldier in order to make a videotape for Al Jazeera.

Also, POWs do not have immunity for deliberate attacks on unarmed civilians. So, for example, if we found that some POW had participated in planning the 9/11 attacks on the WTC, we could charge them with conspiracy to commit murder, and likely various violations of international law. Their POW status would not provide them with immunity in such trials: it would just mean that we had to conduct those trials according to the Manual for Courts-Martial.

Finally, if you actually looked at the link I provided above, you should know already that the Geneva Conventions expressly provide for capital punishment of POWs. For my own reasons, I don't generally favor capital punishment. But if we are going to use it at all, I have no particular problem with it being a sentencing option for courts-martial in something like murder cases involving POWs.
12.6.2005 1:32pm
Humble Law Student:
Medis,

I do apologize then. However, to your substantive point, I would argue that we do have a legal regime to deal with them. Granted, it should be refined and formalized.

For all of the arguing that many do against the "unlawful combatant" category, it appears to me to be the perfect category. Granted, some of its provisions are rather vague, but I think in this case it is a good thing. The category was meant as a catch-all, for those who operate outside of the system. My point is this, if you create two specific categories for treating those who fight against us, then one could plausibly fall outside of both of them. However, our current system has one main defined category (POW) in which we provide definite protections because we prefer that our enemies operate within that framework. The "Unlawful Combatant" category has to be a broad catch-all because otherwise you would have a system in which individuals couldn't be held or prosecuted at all, if they fell outside of the specific delieniations of the two categories. It is in a since the default position for those captured fighting against our troops that aren't POWs.

And, its quite a step up from the summary execution that we used to practice against the "terrorists" of old.
12.6.2005 1:46pm
Omar Bradley (mail):
Commenterlein,

For one thing, I did just show above that many atrocities perpetrated against German and Japanese civilians WERE official US policy and not just "bad stuff that happens" during a war.

Second, the left loves to exagerrate and pretend that Bush is running some Gulag archipelago or that he's setting up Maidanek's and Treblinka's all over the place. In the 4 yrs since 9/11 there's been at most a handful of guys even involved in this(Padilla, Hamdi). You make it seem like the gov't is just picking random muslims off the street and shipping them out in cattle cars.

You mention those who are innocent. I guess we hould have left Hitler in power. After all, we killed more than 1,000,000 innocent Germans to get rid of him. We killed more than 1,000,000 Japanese civilians before Hirohito would kneel before MacArthur. Should we have surrendered first? There's two choices here. Freedom or Submission. They won't rest until we submit. Quite frankly, Bush is actually a tad too timid for my tastes. Further, I could really care less about a few random people caught in the crossfire. They're of no concern to me. Victory us. Read some Churchill.

You should be more concerned about real bad guys and Leftist Gods and Heroes Lenin, Stalin, Mao, Zhou Enlai, Che, Ho Chi Minh, Castro etc... that ACTUALLY have set up far reaching secret prisons and labor camps. But you don't hear a peep from the left or the ACLU or the democrats about Castro or the Chinese Lao Gai, do you?
12.6.2005 1:52pm
Humble Law Student:
Commenterlein,

Yes, conservatives are generally distrustful of government, and our current positions aren't contradictory.

Conservatives are distrustful of government, because in general the private sector can perform various functions better than the government. Also, the governments intrudes at the cost of our freedoms.

Forgive the cliche, but the most fundamental government function that all conservatives agree on is Defense of our Nation. Government is uniquely situation to protect us. Conservatives assume that the general defense and protection of our nations is best effected by the government and not by private parties. As such, the normal conservative reservations about government don't apply. Our reservations are largely based on the efficacy of government action vs. private action. That efficacy gives rise to the principle.
12.6.2005 1:54pm
Unnamed Co-Conspirator:
"So, Ms. Priest, we understand that you've volunteered to participate in the new Foreign Terrorist Exchange Program. Thank you and congratulations. We're sure you won't be disappointed with the cultural opportunities this program presents. I'd like to introduce you to Khalid Shaikh Mohammed, who'll be staying in your home for the next year. He has a few special needs -- I'm sure you'll do your best to accommodate him. Good luck, and we'll see you in 12 months."

. . . . Or maybe we could just drop the bunch of them off at the offices of the Washington Post, or, better yet, at CIA in Langley, since the Agency itself undoubtedly approved, or at least winked at, the leak to the Post.
12.6.2005 2:05pm
Humble Law Student:
Unnamed Co-Conspirator,

You need to put warning signs on posts that are funny. I was sitting in the middle of Torts when I read that and let out a laugh. Everyone stared. Kinda embarressing. :)
12.6.2005 2:09pm
Anderson (mail) (www):
Undoubtedly, HLS and other commenters would prefer to live in a country where the government can break whatever laws it pleases, without the misdeeds' being brought to light by the press.

I'll stick with America.
12.6.2005 2:13pm
fred (mail):
Omar Bradley's repeated references to FDR "killing" a million innocent Germans is the sort of loose talk that is so routine these days. It conveniently omits that noe of those people would have died had the Germans and Japanese calmly claimed the right to exterminate vast numbers of civilians, conquer countries, and destroy whoever they wanted to. It was only in the course of stopping all of this that any of this "killing of innocents" took place.

It's called a war. And the fact that German prisoners starved right along with everyone else after the war is not all that shocking. Famine was widespread. I am not impressed by "modern scholars" who find evidence that there were warehouses full of food somewhere. The same thing happened during Katrina, and it was mere incompetence, not viciousness.
12.6.2005 2:16pm
An American in Germany (mail):
Anderson wrote:

American in Germany, if you see any poll numbers on the Germans' reactions to that case, please pass 'em along. I am wondering how many Germans are wishing the CIA would incarcerate more ethnic Arabs residing in Germany.

Mr. Anderson,

Why would you like to see such a poll? For the sake of completeness, what if the poll included a question about the desireability of incarceration of US citizens by whatever agency for war crimes in Iraq? As an American here, I enjoy, through treaties on taxation and the like, a few more rights than a foreign national from an Arabic country, but basically my legal situation is identical with theirs. And if I had an Arabic surname, but were descended from Christian Lebanese who had moved to the US in the 19th century... surely you're not interested in that line of questions.

Mr. Al-Masri carries a passport that says clearly, in English, that "the bearer of this passport is a German". Contrast that national identification with a US Passport which identifies the bearer as a "citizen/national of the United States". Characterizing him among "ethnic Arabs residing in Germany" is wrong.

While there is a small number of xenophobic Germans who would advocate the action you suggest, and probably some extremist from both right and left who would advocate the same treatment for Americans, the vast majority of Germans are committed to due process, equal treatment of all citizens, and fair compensation for errors made by governments. There is probably a larger number that would allow for different standards to be applied to Germans and non-Germans, but that is not relevant to Mr Al-Masri's case.

Through Mrs. Merkel's statement today, Secretary Rice has admitted that mistakes were made in Al-Masri's case, but it remains shocking that on the very same day Mr. Al-Masri would be not permitted to enter the US. Mr. Al-Masri was abducted by mistake from Macedonia while traveling on holiday, held against his will for 23 days and transported by air to several locations due, after which time he was dumped in a third country without the resources to travel home. Upon return to Germany he found that had lost his job and was treated as a kook with an impossible story. The US should not be returning him to Berlin, the US should be apologizing, assisting him to restore his livelihood, and compensate him. One good part of that compensation would be to invite him, his wife, and his children to visit the US and see first hand that all Americans are not like those he encountered in his captivity.
12.6.2005 2:23pm
Unnamed Co-Conspirator:
Anderson, the statement to the effect that the Constitution is not a suicide pact was one made by Associate Justice/Nuremburg Prosecutor Robert H. Jackson, as part of an argument that in order for the rule of law to be preserved, society must not allow its principles to be interpreted in a manner that renders society defenseless. If lawlessness is tolerated in the name of liberalism, then liberalism will cease to exist.

Robert Jackson never confused Liberalism and the Left, and he would recognize the modern Left as being decidedly anti-liberal. He, like others of the former Democratic party (the party of FDR, Truman, Scoop Jackson -- you know, the Democratic party that no longer exists; someone should probably tell Joe Lieberman . . .) would have been outraged at not only the publication of the story on CIA prisons, but at the leak itself, and the other efforts by CIA to undermine the nation's security for partisan political purposes.

I'm not in favor of secrecy for its own sake, but if secrecy is needed to prevent the press from jeopardizing national security -- as it will do, reflexively, with no better excuse than some imaginary "right to know" -- then, by all means, let's have some secrecy, and let's enforce it by making the leakers and the publishers pay a heavy price.
12.6.2005 2:24pm
Aaron:
I wrote:

"There can be no Prisoners of WAR because, contrary to popular opinion, CONGRESS NEVER DECLARED WAR!!!"

AS replied:

"Aaron is not a long-time reader of this blog, I take it.

Aaron, EV argued (IMO, persuasively, nay, defintively) against that notion, among other places, here (keep scrolling)."

I am not a long-time reader of this blog--I was mainly dragged in kicking and screaming by the SSM debate.

However, I am not convinced that Prof V is correct; his argument is essentially, that we should take the thought for the deed, and that since a foreign "enemy" attacked us, we are, de facto, at war.

"War" requires an actual enemy-state, not a tactic ("Terrorism"), a condition ("Poverty"), or an inanimate object ("Drugs"). This is not mere hair-splitting; whether or not a de jure war exists is important for our military personnel captured in combat. Congress's authorization of force, Sen. Biden's opinion nothwithstanding, was just that--Congressional approval to use force (not that the president needed it, although he did need the money attached).

I would stipulate that Al Qaeda is a criminal organization inimical to the well-being of this nation. We should use all necessary AND LEGAL means to bring them to justice. What we are seeing, however, is exactly what happens when Congress abrogates its Constitutionallly mandated war powers responsibilities. Were this a legally declared war, there would be fewer argument over tactics, the role of the military, hell, even the use of intelligence services. However, as long as we exist in this twilight of phony war, it is impossible to justify, defend, or explain our actions.

To all of the posters who comment on how generations past would have seen today's action, remember this: when we were attacked by a foreign power at Pearl Harbor, Congress didn't "authorize force". It declared war.

Being in a declared state of war lends legitimacy to more extreme actions; witness Korematsu. Hamdi and Hamdan will never be received with the same (albeit misplaced) legitimacy until the precise legal status of the war is determined.
12.6.2005 2:49pm
Medis:
Humble Law Student,

I agree that some sort of new category of lawful detainee (neither POW nor convicted criminal) is needed, and that this category should be formalized and refined. I suggested above what I would consider to be a good general approach.

But I am not sure I understand your "catch-all" argument. Such a category cannot literally be a "catch-all", because then it would authorize the detention of anyone and everyone. Rather, for this to actually be a legal regime in any meaningful sense--for it to be consistent with the most basic principles of the "rule of law"--there must be substantive standards for who can be detained and who cannot.

That said, I would also agree that defining this category appropriately will be no easy task. That is why we should not have been wasting time crafting the necessary laws. Congress should have been dealing with this issue immediately, as soon as it became apparent that we were going to be detaining large numbers of people in the GWOT. We should already have been accumulating cases and precedents under the new legal regime. In light of this experience, Congress might well have already crafted one or more rounds of modifications to the regime.

And the fact that none of this has happened yet is really an indictment of Congress.
12.6.2005 2:50pm
Omar Bradley (mail):
Fred,

And none of this would be taking place had the Iraqi's and Al Qaeda and the Taliban done what they did. There's also credible evidence to suggest that FDR "misled" the nation into war(read "The New Dealer's War").

I agree with you. My only complaint was about those on the left who are so up in arms about Bush and this CIA prison while conveniently omitting that far, far worse went on in our name under democratic presidents, who they seem to have no problem praising.
12.6.2005 2:51pm
David Matthews (mail):
Back to the original post, given that we now (supposedly) know where the prisons were, where they now are, and who is being detained, I think we can drop the adjective "secret." In addition, with a total of 11 detainees, I'm not even sure that the term "prison" is the most appropriate description, though I don't know exactly what to replace it with.
12.6.2005 3:04pm
Anderson (mail) (www):
American in Germany: I was curious because I wondered how Germany's principles would fare against her prejudices. I hope we're not obliged to pretend that the Germans, uniquely on the Earth, are innocent lovers of all mankind, and start whistling the An die Freude.

UCC, I'm familiar with Justice Jackson's origination of the phrase, and the terrible opinion in which he did so. (What a hoot, btw, that he cites Woodrow Wilson in favor of free speech, when Wilson's administration was the worst for free speech since the Alien &Sedition Acts.)
12.6.2005 3:04pm
Omar Bradley (mail):
Anderson,

Are you thus saying that national suicide and destruction is permissible under the Constitution?
12.6.2005 3:45pm
Anderson (mail) (www):
Omar: are you saying that bunnies frolic in the spring?
12.6.2005 4:11pm
Omar Bradley (mail):
I'm saying I don't get what your point is about the Constitution and a suicide pact. If you disagree that it's not a suicide pact, then what is it? And what point were you trying to make by bringing it up?
12.6.2005 4:21pm
Omar Bradley (mail):
By the way, has Bush ever said anything like these things that Democrat God FDR said:

In an August 26, 1944 letter to Wilhelmina of the Netherlands, Roosevelt wrote that "There are two schools of thought, those who would be altruistic in regard to the Germans, hoping by loving kindness to make them Christians again - and those who would adopt a much 'tougher' attitude. Most decidedly I belong to the latter school, for though I am not bloodthirsty, I want the Germans to know that this time at least they have definitely lost the war." (The Roosevelt Letters, volume III: 1928 - 1945, London, 1952).

Roosevelt is also quoted as saying to Morgenthau that "We have got to be tough with the Germany and I mean the German people not just the Nazis. We either have to castrate the German people or you have got to treat them in such a manner so they can't just go on reproducing people who want to continue the way they have in the past" (Blum, p. 342).

At the Tehran Conference in late 1943 Stalin had proposed that at least 50,000 and perhaps 100,000 German officers should be liquidated. Roosevelt's son, Elliot, enthusiastically agreed. The President remarked that perhaps 49,000 should be enough (US Department of State, The Conference at Cairo and Tehran, 1943 (Washington: 1961) p. 602).

Roosevelt was presumably joking, but at the Yalta Conference the President said that he was feeling "very much more bloodthirsty towards Germany" than earlier and indicated that he hoped Stalin would again "propose a toast to the execution of 50,000 officers of the German army" (US Department of State, The Yalta Conference, 1945 (Washington: 1961), Roosevelt-Stalin Meeting, Feb 4 1945, Bohlen Minutes, pp. 566-573).

So, who's the real warmonger and war criminal? Bush, or Democrat hero and the mainstream media's ideal "wartime president" FDR?
12.6.2005 4:28pm