The LA Times reports that Attorney General Eric Holder is now expected to appoint a prosecutor to look into the alleged abuse of detainees during interrogations. Specifically, the report suggests the prosecutor will be asked to examine the narrow question of whether CIA personnel and others exceeded the limits on interrogation techniques that were set by the Justice Department. Even though the Justice Department's Office of Legal Counsel adopted a fairly expansive view of permissible interrogation techniques during the Bush Administration, some reports indicate that some interrogation methods used went well beyond what the OLC memos authorized. The story also reports there are additional incidents of abuse or illegal conduct that have yet to be disclosed.
Successfully prosecuting CIA interrogators could be difficult, the LA Times reports.. The events in question occurred several years ago, and the facts may be difficult to pin down. In addition, the federal anti-torture statute has a specific intent requirement, and some interrogators may plausibly claim they were unaware of what the limits OLC had set. Justice Department officials apparently looked into bringing charges against CIA or military personnel implicated in detainee mistreatment, including some cases that resulted in a detainee's death, but concluded the cases would be too hard to make.
The announcement of a prosecutor will likely generate criticism from both Right and Left. The former will argue that any prosecution is an effort to criminalize political differences and undermine CIA morale. The latter will be upset about the inquiry's narrow focus, and its failure to cover those who authorized coercive interrogation techniques. According to a spokesperson for Human Rights Watch: "An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all." Stay tuned.
I'm not sure I understand the point here. The memos which set forth limits are, arguably, a defense to charges which would otherwise lack one. Anyone who claimed not to know about the memos would surely be liable under a standard array of charges: battery, torture, etc.
Bush's DOJ set certain parameters for these interrogations. So if it's not a crime to go beyond it, what was the point of setting these limits?
I do not know whether the answer involves special prosecutors, statutes, court decisions, extradition, civil judgments, disbarments, courts martial, official expressions of opprobrium, other measures or a combination. I sense that relying on refraining from placing such people in power would be inadequate.
There may be reasons to let the culpable escape personal accountability that trump the legitimate desire to bring them to justice. I see no reason to shirk the responsibility to strive to prevent recurrence.
Our security apparatus will spend their days trying to figure out how to not get charged with a crime 5 years from now for something they were in some way associated with today while they try to stop the terrorists from their next attack on us. New talent will think twice or more about joining, everyone 'inside' will run for cover, and their effectiveness will be diminished.
There will be much rejoicing in Berkeley and San Francisco.
ArthurKirkland:
"I continue to focus on the best way to prevent recurrence of the torture, warrantless surveillance, kidnapping and other un-American conduct."
Arhtur, perhaps your hatred and anger and bias would be better directed against those who are trying to KILL AMERICANS, rather than those working to stop them.
If you're so worried about 'strive to prevent recurrence', perhaps you should reconsider the object of your attention, and focus it on the 3,000 that died on 9/11, or the USS Cole, or the Marine barracks in Beirut, or our soldiers in Iraq and Afghanistan and elsewhere,
Your priorities are totally and utterly screwed up, Mr. Kirkland. If you 'Hate America First', then leave it, and go somewhere you like better, where your view of 'civil rights' etc is upheld. Perhaps Iran ? China ? Pakitstan ? Whatever and wherever - but do kindly take your anti-American bias far far away. Thank you.
Are we in a time of war? If so, against who? How do we win a "war" against a tactic, and in which millennium do you think that might happen?
And the next administration, and the ones after that, will do the same damn thing. And for the same reason.
They differ in many things - skin color, sect, power struggles, etc, but they have the key thing in common - a desire to force Islam on the world by any and all means, particularly a vicious and eveil version of Islam take straight out of a thousand or more years ago.
Their belief system includes, among other things, the complete subjagation of women, the complete elimination of personal freedom, and dictatorship by religous figures.
They have taken a common name from one of their common tactics - terrorism. Now you have a better understanding of the term, and who it identifies.
As to time frame - like all wars, it will continue until it ends, and we either win or lose.
Are you in a hurry ?
Keep telling yourself that as the jihadis close in...
By that logic we'll be at war forever and we will never have won, because there's no government on the other side to surrender and because there will always be more people out there who think it's ok to murder in pursuit of a political objective.
I hope the proprietors recognize, dislike and change this circumstance.
Take your insults and shove em where the sun don't shine!
Alaska in winter time? Dark side of the moon?
Yes very NewSpeak how they always like to twist definitions, ban "offensive" words, or come up new terms to prevent "incorrect thought".
You'll also notice who they demand DoubleThink from their followers, and persecution of ThoughtCrime (referred to as Hate Speech).
One of their big things (especially during the 70s) is re-writing history or outright fabrication thereof (ala the Ministry of Truth)
The Left's dream of utopia is a dream of a boot kicking in your face, forever.
Well that is because to The Left Americans are "bad people" and therefore, dead Americans are a good thing. Why do you think they were so happy every time an American soldier died in Iraq?
But you know they "support the troops" no need to question their motives or patriotism. They "support the troops" even if they are trying them for "war crimes".
And we learned their definition of "war crimes" via Israel. Exploding bombs that cause BBs and rusty nails to rip through the intestines and limbs of people in coffee shops or launching rockets into pre-schools such that the limbs, arms and faces of little children are torn from their bodies; A-OK, no war crimes here.
Defending those children and civilians: serious war crimes, more proof that Jews are a horrid race beyond the pale.
In fact, if there are no actual events just make some up ala al-Durrah &France 2 hoax.
Has this really been in question? It's not like Greenwald had some flash of sudden insight here.
Nick
I hope the proprietors recognize, dislike and change this circumstance."
Would that include not allowing people to post under the name of movie characters ?
BTW, there is only one 'proprietor' of this site, and his name is not hard to figure out, nor is his email address hard to find here. If you would like to encourage him to stifle the free speech that so offends you, I suggest you write to him on the topic.
HUSH !!!!
Wooooo! Scary jihadis! Tear up the United States Code!
I'm sure that's exactly what Daniel Pearl was thinking as they sawed his head off.
Says the shit-slinging monkey.
A terrorist attack, then, means his presidency is over. Right or wrong, there will be none of the (even kabuki) rallying around the flag and casting partisanship aside. Right or wrong, Americans will blame Obama for not taking the threat seriously.
I've never figured him to be of anything but average intelligence. But even he's shrewd enough to realize this. Behind the scenes, while the show trials ensue, he'll do whatever he has to to make sure nothing happens here. If that means getting some terrorists wet, I'm betting it happens.
I would recommend to all of them that they not speak to anyone participating in the investigation, with or without counsel. Demand a grant of full immunity upfront.
This could backfire politically. Say you get to trial and it comes out that as the result of the CIA actions, a terrorist plot really was stopped?
Then we'll have newspaper articles, breathe a sigh of relief memoirs, and a few years later a major motion picture nominated for a couple of Oscars, and at the celebration water will change to wine.
Just wondering, from a non-attorney's point of view.
After all, the Roe v. Wade Court expressly rejected the use of biological facts in determining the definition of a person.
The Roe court answered the personhood based on exactly two considerations: (a) Whether various passages in the constitution that use the word "person" have historically been applied to fetuses, and (b) whether termination practices in the 19th century were freer than the are today.
If one makes any sort of honest effort to apply the identical test to extraterritorial enemy combatants in any sort of fair and impartial way, and if one honestly attempts to keep oneself, as the Roe court commanded, to reaching unexpected or undesired results, it's simply not possible to reach any other honest conclusion other than the same test compels concluding that the term "person' also does not cover extraterritorial enemy combatants. The word "person" in the identical constitutional clauses the Supreme Court used no more apply to such a combatant than they do to a fetus -- they aren't counted in censuses, clauses refering to electors or public offices don't apply to them, etc. etc. Moreover, and equally telling, our nation's practices regarding the treatment of enemy combatants were simply much more liberal in the 19th century than they are today, ad especially so in "irregular" wars, as any honest history of e.g. our wars against the Native American tribes cannot but conclude.
It's critical to note that the Roe court explicitly characterized biological similarity considerations as arguments for personhood, not against personhood, but explicitly found that constitutional text and historical practice considerations, not well-known biological facts, controlled.
The Roe court of course found biological facts relevant to the state interests the court found to be actually relevant, such as upholding traditional social values. But it explicitly held that without personhood, there is no right to any personal life or liberty and no state interest in vindicating it.
Yet despite the fact that Roe v. Wade adopted a test which clearly and obviously finds enemy combatants not to be persons or entitled to any right to life or liberty, proponents wrap their personal feelings of squeemishness in personimorphic language which is, Roe teaches us, utterly inappropriate to the situation.
What's the difference between partial-territorial termination and partial-birth abortion? Why should courts care if military security professionals momentarily take enemy combatants into U.S. territory as part of a military termination procedure any more than they care if medical professionals momentarily take a fetus outside a uterus as part of a medical termination procedure? Courts permit laws against such procedures, but any claim that the constitution requires them is simply inconsistent with what Roe v. Wade was all about.
Opponents of "torture" seem to use essentially the identical arguments that opponents of abortion have been using. They claim in highly emotional language that "torture" is inconsistent with fundamental American values, the principles on which this country was founded, yadda yadda yadda. But thirty years of abortion jurisprudence ought to have been enough to have taught us that this sort of rhetoric is nothing more than the noise religious zealots make when they attempt to impose their own religious values on the nation.
If we honestly believe Roe v. Wade is good law and it's actually a precedent for the case, we have to admit that our country was not in fact based on any such values. It's a secular republic whose purpose is to enhance the liberties of Americans. People whose religions teach them that humanity has some sort of universal character have no more business shoving their religion down our secular nation's throat than people who believe life begins at conception.
It seems to me that we either ought to abide by Roe v. Wade, or admit it's flawed and get rid of it. If we're willing to abide by it, liberals ought to refrain from imposing their own religious values on others and accept the Roe test as controlling what constitutes a person and abide by actions accordingly, just as they ask conservatives to do.
And liberals aren't willing to abide by Roe -- if they throw out the test and refuse to go along with it the minute it reaches a conclusion that conflicts with their own a priori beliefs and deeply held values -- then we ought to admit that the Roe test isn't something that anyone -- liberal or conservative -- actually believes in or is willing to abide by even for a minute when it leads to any conclusion they'd otherwise disagree with. And we ought to get rid of it as unworkable.
Is it workable or is it not workable? If it's workable, this is the time for liberals to prove it by showing they're willing to abide by it when it goes against their own deeply-held beliefs and values. If it's not workable, we ought to all admit it, get rid it of it, and move on. Perhaps people have other constittutional (as distinct from political) arguments why fetuses should be treated differently from extraterritorial enemy combatants, perhaps not. But Roe v. Wade is written in a way that admits to no such distinction. Either we give it some respect or, if we're not willing to respect it, let's get rid of it.
Time to buy more stock in Depends. The "take my liberty, for God's sake" crowd is running the inventories to an all-time low.
You talking about everyone in favor of Obamacare?
I kid, I kid.
(Not really.)
No one is going to jail here. Period. If anyone does, then expect Holder to be tried in the next Administration for any number of things. Remember, this was the guy who approved the Marc Rich pardon, and has already shopped for a second opinion in the case of D.C. representation. I have little doubt he has already crossed the line this time around, and will continue to do so.
But he won't have the excuse that those performing the "torture" or authorizing it at some level will, since they were trying to save the country from terrorism, and he is just trying to protect the Administration from its excesses.
It is a horrible precedent, esp. given the reason that those 4 or so terrorists were "tortured". It will mean, besides that the CIA cannot trust a Democratic Administration, that each Administration can expect to be prosecuted by their successor.
Which left-wing base do you imagine would be appeased by prosecuting CIA interrogators and not the guys who gave the orders?
Get back to me when Joe Biden outs a CIA agent.
If we can get those Depends covered by health insurance, along with some Xanax, do you think we'd pick up some votes?
The issue is not whether or not they are human beings - that's a religious question Roe v. Wade expressly sidestepped. The issue is whether they were regarded as having a right to life or liberty that was regularly observed, either by our military or courts. And the answer to this is obviously no -- it's not possible to answer this otherwise given any honest assessment of either the historical facts or the historical state of the law.
As the U.S. Supreme Court noted in Johnson v. Eisentrager, U.S. courts first regarded resident aliens as having constitutional due process rights in 1886, considerably after most states had criminal abortion laws in place.
However, as the Johnson court noted, "But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act."
As the Johnson Court put it:
Througout mos to the 19th century, even resident enemy aliens were outlaws -- Americans had the right to kill or plunder them at will. The Enemy Alien Act authorized the President to order them put into concentration camps, And this was in part for their own protection, since they had no recourse at law against the citizenry. Johnson re-affirmed that non-resident enemy aliens remained outlaws, without constitutional rights.
Johnson permitted the U.S. government to treat them humanely, but it by no means requires it. Roe v. Wade, however, stands for the proposition that the constitution imposes limits on the capacity of government to mandate treatment of non-persons that is based on humaneness or similar traditional values when such mandates conflict with Americans' exercise of their constitutional liberties. The The constitution is out there protecting us from a government overly and unduly influenced by humane impulses, which the Court found threatened our liberties and the secular character of our state. Although humanity is only forbidden when it is unduly burdening, it is never required.
Agreed.
This is Obama's go-to issue whenever he needs to change the subject of debate.
I am sure eventually someone will go to jail for this, or at least have their lives ruined by attorney fees, etc., after all this administration is only ~9 months old and they have gone to this issue 2 or 3 times.
Single Payer Healthcare is not going very well for him right now and he needs these show trials to push Healthcare off the front page.
We know it needed to be done because they said so. We know it was effective (rather than ineffective or even counter productive) because they said so.
And as we know the government never makes mistakes and always tells the truth.
I didn't read those memos as strictly setting limits. They opined that, "If you go this far, it is legal." They did not specifically state that "If you go beyond this, it is illegal." They drew no line. So there is valid grounds for argument to determine the line.
Bruce Hayden:
I'll go one farther. We will go after The Obamanation for Treason, seek a capital penalty, and hang Him.
Political witch hunts can go out of control. This is a genie we do not want out of the bottle.
> ArthurKirkland:
> I see ground -- worthy ground -- between
> 'stifling free speech' and fostering an
> uneven circus.
> Says the shit-slinging monkey.
I must admit that until this point, I wasn't sure whose argument was more persuasive. But PlugInMonster's retort persuaded me! What power of argumentation! All I can do is admire.
I hope it was not so much that I lost you, but that the other argument was a winner.
This is preposterously false. Care to provide some examples from, say, the War of 1812? Names of all those British citizens summarily executed with impunity by private citizens?
Just to pick an easy example, women and children were not to be treated like men bearing arms (Vattel, Bk. III, Sec. 72); we have no right to kill them or even maltreat them (Id., Sec. 145). Enemies who surrender are entitled to quarter (Id., Sec. 140), and prisoners of war are not to be treated harshly and may not be put to death (Id., Sec. 149-50). Those who don't take up arms and submit to our soldiers are "to live in perfect safety". (Id., Sec. 147) In no case can private individuals, without orders from the sovereign, commit any act of hostility (Id., Sec. 223).
Right next to Emmett Till, no doubt.
If you seriously dispute that hundreds of Indians were summarily killed by private citizens, read any history book.
Talking about how we treated Europeans and pretending we never killed enemy civilians in the 19th century is a bit like talking only about how wanted children were treated and then pretending abortion never happened in the 19th century. The fact is, we treated Indians and other dark-skinned undesirables completely differently from the way we treated the British and other "civilized" peoples.
Of course, there are also plenty of 20th century examples too. The bombing of Dresden, Hiroshima, and Nagasaki, for example.
So what if they want to? I want a billion dollars, but that doesn't mean I'm going to get it.
An exception to the laws of war based on racism hardly supports your original claim. And even in the case of Indians, a good many people protested their treatment and, on at least a few occasions, the perpetrators were prosecuted.
I think you're making an incorrect assumption. Arthur Kirkland posts as Arthur Kirkland because he is Arthur Kirkland.
=================
monster:
And there are Americans who want to kill me because (let's say) I practice abortion, or homosexuality. I'm their idea of a "kaffir." The violent fundamentalists who live in my town worry me more than the ones hiding in a cave on the other side of the planet. But I'm not wetting my bed, and I'm not asking for the Constitution to be shredded.
=================
constantin:
Hmm, let's see. WTC was attacked during Clinton's first term. Nevertheless, he was somehow reelected. Then WTC was attacked again, during Bush's first term. Nevertheless, he was somehow reelected. Imagine that! Even though he spent a month clearing brush after reading the famous PDB. And even though he had been promoting the idea that what we really needed to fight terrorism was SDI.
Yup, so it makes perfect sense that Obama would be punished for failing to prevent what both his predecessors also failed to prevent.
Yup, makes perfect sense. After all, it's not as if Bush's approval ratings hit 90% (the highest of any president, ever) after 9/11. But next time it will all be different, because that's what you see in your crystal ball.
Keep hope alive.
I prefer Roger Ebert. Or the Academy Of Motion Picture Arts And Sciences.
That isn't the dispute. The dispute is that, first of all, Indians were not "aliens" -- they were treated as separate nations under law by the U.S. government -- and, second of all, that they were not outlaws with no legal rights. It probably was difficult to find a jury that would convict a white man of murdering an Indian. It was also difficult until the 1950s to find a jury that would convict a white man for murdering a black natural born American citizen in Alabama or Mississippi. So what? Non-whites were still covered by the law -- whether they were citizens or residents or not -- and were not "outlaws."
But the concept of racism really only applies to persons, does it not? Why use such an inapplicable word?
Obviously if one opposes choice one sees certain aspects of our history as representing exceptions; if one favors it one sees those same aspects as representing that same history's mainstream. The Roe court made its choice as to which way to call it in the abortion context as to which is the mainstream and which the abberation. Here too we have a history which could potentially be regarded either way. Here too, the favorably chosen got one history, the non-favorably chosen got a different history. It's precisely because we never really regarded dark-skinned enemies as real persons that we can rationalize thinking of our behavior towards them as somehow not really counting when it comes time to determining what our legal history was. But this very reaction is evidence against personhood, not for it. The Roe court wasn't willing to discount behavior so freely: it paid a great deal of attention to our actual behavior. Even when behavior was disapproved by religious zealots and other busy-bodies, that disapproval was far from universal. After all, some abortions were also prosecuted in the 19th century: if the ones that weren't could be palmed off as exceptions, Roe v. Wade would obviously have been decided differently. Further, racism was a characteristic of our policy towards aliens generally until well into the 20th century. Thinking of it as being taboo is far more recent than thinking of abortion as being taboo. Our 19th-century attitudes towards the subject were simply much more liberal, much less taboo-based.
It does no good to say the 19th century was backwards and we shouldn't be permanently bound by its views on personhood status questions. That's nothing more than an argument that Roe v. Wade was wrong. All opponents of Roe say that.
I assume you mean the Tea Party protesters who, as instructed in their manifesto, are following "the Alinsky playbook".
I would have no problems with Holder assigning this task to some attorney in the DOJ who could be held accountable by Holder and fired by Holder for any or no reason. That way, we, the public, can hold Holder and his boss, President Obama, accountable for what this prosecutor does or does not do. If the result is to destroy the CIA's ability to operate for the next generation (a la Sen. Church), well, we'll know who's responsible.
I would strongly object to any attempt by Holder to hive off responsibility by appointing a "special prosecutor" outside of the DOJ chain of command. There is no legal basis for a "special prosecutor" here - there is no conflict of interest, no reason that DOJ can't handle this investigation and, if warranted, prosecution, just like any other criminal investigation.
Your race baiting is noted.
The statement was intended, as you well know, to illustrate the dangers of perverting vthe justice system for political ends.
ReaderY:
There is considerable difference between there being no law, and the practical inability or unwillingness to enforce that law. Not that it makes any difference to the victims.
Those were all valid military targets; transportation centers or the sites of significant military manufacturing operations. In the case of the Japanese targets, they also saved millions of Japanese lives.
You forgot the firebombing of Tokyo, which made your examples look ile backyard barbecues.
This displays sheer ignorance of the Left, other than as a capitalized bugbear; as Adler correctly notes, "the Left" is not at all pleased with these "bad apples" prosecutions.
A more plausible explanation is that Holder's department is itself divided on the issue, and he's trying to split the baby.
I hope you were kidding.
The presence of a valid military target within a city is not a legitimate basis for burning down the entire city with its civilian inhabitants, any more than is shooting 100 civilians because your intel advises that one of them is a spy.
It certainly is. All military targets are valid targets. If the enemy wants to protect their civilians, they can locate their industries in safer areas. In addition, using the technology of the 1940s, the only reliable way to take out an industry is to bomb the entire city flat. High altitude precision bombing never lived up to its promise.
Leo Marvin:
They'll hang ours. We'll hang theirs. I'll try to corner the market on rope.
This is why vpolitical violence and political prosecutions are such a bad idea. Fix bayonets!
My preference would be to abolish them altogether, as they have failed miserably in nearly everything they have done since their creation. What did Ike say to Allen Dulles? "you have left me a legacy of ashes." ( great book BTW)
I can't disagree with you about abolishing the CIA. The idea of Central Intelligence offers too many opportunities for political abuse. With an Army, the Navy, the Air Force, and perhaps a small General Intelligence Agency, not to mention NSA, you get a multiplicity of viewpoints. Since those agencies exist today, it would not engender a vast upheaval.
CIA has a nasty recent history of political meddling. I suspect Obama will learn that they are not particularly controlable, and not to be trifled with.
Your "anything goes" attitude is not to be confused with the law of war crimes.
The linked Wikipedia article provides an unobjectionable summary of proportionality:
A crime occurs if there is an intentional attack directed against civilians (principle of distinction) ... or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) ....
In March 1945, there was no "anticipated military advantage" to burning Dresden down that was proportionate to the loss of civilian life. The war was won.
See, now right and left can agree sometimes. I'd vote to abolish it too.
Can you direct me to, or better yet, provide a link to the "manifesto" that makes it mandatory for all the Tea Party protesters to follow Alinsky, so I can verify for myself that there even is such a thing? Thanks. (I'm sure JBG can find one on the Media Matters or Kos database he's plugged into. With all that Soros money, they must have been able to find at least one pimply high school nerd with a swaztika on his blog that has two readers who they can point to as the ringleader of all the Tea Parties.)
And for our sake, I certainly hope that Alinsky's rules are being followed. What we've learned in the last year about Alinsky, is that his Rules for Radicals have been the guiding force for the left for many decades now, and the worst part is, despicable, amoral, immoral, or not, they worked. I sure hope you and your buds on the left get to feel exactly how we have for the last 40 years while your team has cheated, lied, scammed, twisted, intimidated and much worse while following those rules.
And this is totally amazing that you would even try to tar these protests with the word "ALINSKY", given that your hero is an avowed fan. We are not going to forget that he taught ACORN classes in how to use Alinsky's rules to force bankers to make millions of loans to people who should never have gotten them, and to push the feds into making such lending mandatory. There would be no financial crisis without the partnership between the left and Alinsky.
Neither the Rome Statute of 1998 nor the Hague Convention of 1949 are relevant to what happened in 1945.
In any event, the civilian casualties were not clearly excessive in relation to the anticipated military advantage. The military advantage of disrupting enemy communications, preventing them from shifting troops and munitions, and disrupting their manufacturing capability (Dresden had some major optical manufacturies) is incalculable.
Killing 100 Enemy to one Friendly, of whatever flavour, is not excessive. It is effective.
Germany could have declared Dresden an open city and closed its military targets. Instead, they chose to defend it. The fact that it is defended, makes it a valid target, in that its defenses are valid military targets in themselves. The destruction of its defenses prevents them from being diverted to uses more directly damaging to us.
It has been argued that the biggest benefits of the entire strategic bombing campaign, was the destruction through attrition of the Luftwaffe, the tying up of vast numbers of 88mm and 105mm AAA that would have been of great consequence on The Front, and the expenditure of millions of rounds of AAA ammunition that could have been used against us elsewhere.
Tell that to the million odd casualties suffered between 16 April 1945 and 2 May 1945 during the Battle for Berlin alone.
The war is not over until the last shot has been fired.
It should be noted that, under 1930s thinking, which persisted through the War despite significant evidence to the contrary, aerial destruction of cities was viewed as more humane, creating fewer casualties and less misery, than the trench warfare of WW-I. This was based on a number of misapprehensions, not the least of which was the effectiveness of aerial bombardment, but it is extremely rare that First Principles are questioned in time of war.
Hang 'em all - let God sort 'em out?
Otherwise, I propose we use as many methods -- prosecutions, disbarments, civil judgments, statutory revisions -- as are necessary to effect safeguards strong enough to defuse any temptation to engage in misconduct such as torture, warrantless surveillance, kidnapping and the like.
The ten-eyes-for-an-eye, twenty-teeth-for-a-cavity sentiment expressed in this discussion indicates that our country can not rely on the character, courage and morality of those who might populate the next iteration of our executive branch. The expression of national standards, and penalties for breaching those standards, needs to be clear enough to rein in whomever occupies the relevant positions a decade or two or five from today.
Or, we could declare unambiguously that we are a nation of brittle, frightened cowards ready to check law, morality and our principles at the door the next time something spooks our leaders.
Eeeny, meeeny....
Nor can we rely on the character, courage and morality of those who populate this iteration of our executive branch.
Working from history, one can never rely on the character, courage and morality of politicians, executive, legislative, judicial, or military. At the highest level, there is nothing separating justice and policy from politics. If the person in power has sufficient of it, whether through the structure of government or through popularity, or through some other mechanism, your legislative attempts to rein him in will be to no avail.
"John Marshall has rendered his opinion, now let him enforce it."
Lincoln suspended Habeas Corpus.
This is not an altogether rational business, but refraining from pushing the envelope outward is, in my mind prudent. The tool for correcting egregious policy is the impeachment process.
Impeachment would probably be more workable in something other than a two-party structure. The economic and political spoils associated with holding the presidency are too great, in my judgment, to accommodate impeachment as much more than a political weapon, even when most acknowledge that an office-holder is not adequate for the responsibility.
One party was prepared to impeach for sexual impropriety yet would have fiercely opposed impeachment of a president or vice president whose failures were of history-bending, party-line-crossing magnitude. This is not so much an indictment of one party -- who can say how the Democrats would have acted had the simple cad been a Republican and the substantive clustermuck a Democrat? -- as much as the natural consequence of a two-party system.
Weak and bad men may attempt to evade safeguards, but that is no excuse for failing to establish them. Attacking the wrong country was a mistake. A grave one. Torture and the other wrongs inflicted on captives and civilians and the innocent, however, were worse than mistakes. We need to identify standards, and the penalties for violating them, else we be rightly adjudged no better than the lawless, inhumane conduct now part of our record.
No, one party was prepared to impeach for perjury.
Over the weekend, I had the chance to peruse Fire and Fury: The Allied Bombing of Germany, 1942-1945, which I recommend as readily available to anyone curious about this episode in military history.
Otherwise, I'll point out that Dennis resorts to one of the most overused and implausible defenses of carpet bombing, the diversion of German resources to ground defense. Why it would not have been necessary to defend industrial targets (e.g., the Ruhr) as well as civilian targets (e.g., Dresden) is something I have not seen explained by the post-hoc rationalizers of our disproportionate, unnecessary, strategically backward killing of tens of thousands of German men, women, children and infants.
Adam Tooze credits Speer's assertion that, had the RAF continued its focus on the Ruhr and similar targets in 1943, Germany could not have continued to fight. I do not think that many people realize how deliberately focused the RAF was on burning down German cities and towns qua cities and towns. One can label any conurbation a "transportation nexus" -- that tends to be where people congregate.
Rules? What "rules?"
Can you direct me to, or better yet, provide a link to the "manifesto" that makes it mandatory for me and all my "buds on the left" to follow Alinsky, so I can verify for myself that there even is such a thing? Thanks.
Your irony impairment is severe.
I wonder if you're thinking of the "he" who said this:
Must have been another follower of Alinsky.
I'm going to let you in on a deep, dark secret. But only if you promise not to tell anyone. I'm only "plugged into" one "database." It's called 'google.'
=============
dennis:
If someone somewhere is making plans to flatten Tel Aviv, they are probably also planning to release a PR statement making excuses for the flattening. And their excuses will sound a lot like yours.
You mean perjury itself is a serious matter, even if no other crime is proven? I guess that explains why Scooter Libby never went to jail.
The fact that apparently-eternal values change considerably in practice is a reason for letting legislatures address them. We have often, although not always, been quite generous towards our enemies.
It seems to me that the enemy-combatant situation is a good argument against Roe's essentially binary approach of saying there no choice other than full personhood or being treated as a sack of meat.
Enemy combatants fall between these two extremes. Giving them the same rights as citizens doesn't work, but treating them like one would an appendix doesn't work either. The enemy combatant context is ytterly inconsostent the logical dichotomy on which Roe was founded -- not being a person in the full sense of the word means not being a person in any sense -- is a fundamentally false dichotomy. The law has never recognized this subject as being a dichotomy. Enemy combatants fall smack in the middle and they stay there and won't be subject to dichotomization; it founders on them. The dichotomy doesn't work. It isn't natural to our law and it doesn't fit with it.
Warfare doesn't square well with a "rule of law." There's an old Roman proverb, "Lawyers are silent when the swords are out." Obviously, it is permissible to kill enemy combatants using about any method available and in any numbers whatsoever, as long as they are resisting or potentially resisting you. That's what war is about - making the other poor SOB die for his country. Oh, and breaking his stuff.
The complexities come in when he is no longer a threat to you. "Civilian Non Combatants" and prisoners are the most common cases, here.
In the current war, the knotty problem is with "Unlawful Combatants." The current state of law of land warfare identifies Lawful combatants and other, presumably unlawful ones. This has evolved since the Thirty Years Wars as an effort to preserve Civilian Noncombatants from wanton slaughter. Key to this is telling them apart. If you can't tell them apart, there is a tendency to "kill em all ..." It's simple self protection.
This is why the Hague Convention identifies the tests of a Lawful Combatant: bearing arms openly, distinctive uniform, responsible chain of command, and following the laws and customs of war. It's often said that Unlawful Combatants can be shot out of hand. The HC does not say that. It grants protections to LCs but not to ULCs. HC pretty much leaves it up to the capturing nation's laws. Our laws do not permit us to shoot ULCs out of hand, but doesn't really specify what we can do with them. Spies can be executed. Terrorists are not really defined.
I think a pretty strong case can be made for draconian treatment of Unlawful Combatants. To do less, increases the danger of treating Civilian Noncombatants as targets, purely out of suspicion.
They won't make excuses. Israel's various foes have made it pretty clear that annihilation is their goal.
Do not confuse strategy with morality. There may have been more effective ways to win the war. There always are, and they are always viewed in retrospect.
War is Hell and always be Hell.
One important reason to refrain from attacking the wrong country.
I think a pretty strong case can be made that you never heard of Hamdan v. Rumsfeld.
And you've made it pretty clear that you're perfectly capable of exactly the kind of logical and moral sophistry that can always find a way to present annihilation as necessary and proper.
Fortunately, we've been able to do that, so far.
jukeboxgrad:
Hamdan v. Rumsfeld is irrelevant to my statements. Admittedly, our current law is not adequate to deal with unlawful combatants. Under Hague, they must be tried by military courts. Spies are covered under the UCMJ. I don't see where UCs are. We already have most of the tools. No special tribunals are necessary, just a General Court Martial.
Not at all. The sort of bombing done in WW-II is not necessary in anything short of a nuclear war. We have the ability to hit targets smaller than cities. We didn't then.
A majority of the US ultimately came to their senses and realized that the Iraq war was a mistake. This is shown in numerous polls, including the one that took place on 11/4/08. So thanks for reminding everyone of one of the GOP's many problems: that it is inclined to avoid admitting and taking responsibility for its mistakes. Even (or especially) when the mistake is colossal.
Of course Hamdan v. Rumsfeld is irrelevant to your analysis. That's because all law is irrelevant to your analysis. All law is irrelevant to your analysis because you inhabit a magical world where it's always possible to come up with an excuse for ignoring the law.
"Adequate" is a matter of opinion, and of course you're entitled to whatever opinion you happen to have. But your opinion doesn't matter. What matters is that SC ruled (in Hamdan v. Rumsfeld) that "current law" (GC Common Article 3, in particular) indeed applies to "unlawful combatants."
That's because you've adopted this position, and are choosing to not "see" Hamdan v. Rumsfeld. Hamdan v. Rumsfeld told us "where UCs are:" under the protection of GC Common Article 3.
That's fascinating, since "the sort of bombing done in WW-II" mostly took place long before WWII became a nuclear war. I see that one of the magical qualities of the special planet you inhabit is that the arrow of time runs in reverse.
In WWII we didn't "have the ability to hit targets smaller than cities?" Really? Another fascinating fact.
I didn't realize that in WWII we never once managed to target and destroy an individual town, village, airport, ship, block, factory, aircraft, house, motor vehicle or person. Because those are all "targets smaller than cities." Thanks for clearing that up.
And since Israel has many enemies whose military capabilities surely fall short of the capabilities we had in WWII, it's nice to know they are free to flatten Tel Aviv, since all they have to do is declare that they don't "have the ability to hit targets smaller than cities." It's an exceptionally weird and counterfactual declaration, but if it's good enough for you it should be good enough for them.
That's an example of what your ilk does routinely: dismiss the law with nothing more than a wave of your hand.
When you make statements that demonstrate your disdain for the law, you shouldn't be surprised when you are described as someone who disdains the law.
You said this:
'Draconian' means 'marked by extreme severity or cruelty.' GC requires prisoners to be "treated humanely." A prisoner who receives treatment that is marked by extreme severity or cruelty is not being treated humanely. By definition. So you did indeed propose something in contravention of GC Article 3.
Aside from people who oppose capital punishment generally, do you know of anyone who objects to the idea of executing "unlawful combatants" subsequent to some kind of a fair, lawful trial? I don't. So I don't understand why you think that what you are saying even needs to be said. And aside from opponents of the death penalty, no one would use the word "Draconian" to describe a lawful execution that took place subsequent to a lawful trial.
Since we're in agreement that unlawful combatants should routinely be executed, I guess we're done.
A lawful execution that takes places subsequent to a lawful trial is never "Draconian" (to anyone other than death-penalty opponents), no matter how "routinely" this happens. The word "Draconian" has nothing to do with whether or not something is routine. It has to do with whether or not something is marked by extreme severity or cruelty. Nice job pretending that words mean something other than what they actually mean.
(It just so happens that I'm an opponent of the death penalty. But for the sake of simplifying this discussion, let's pretend for a moment that I'm not.)
They should indeed be routinely executed if we routinely conduct fair trials which find them guilty of crimes which carry the death penalty. Do you know the number of times this has actually happened? I think the correct answer is zero. So your concept of a world where such trials (and outcomes) would be "routine" is yet another product of your fantasy life.
Do not confuse strategy with morality. There may have been more effective ways to win the war. There always are, and they are always viewed in retrospect.
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I think there actually are similarities, and one them is that many people behave in ways that are involve moral contradiction -- they find themselves behaving differently from the way, in safety, they say people should behave.
The Constitution clearly left responsibility both for defining and implementation of international law to the
political branches. Our participation in international treaties on the subject is optionalm and their terms are subject to interpretation in which we and other nations may disagree. How we treat those outside utterly outside our society is a matter somewhat up for grabs.
My comparison of enemy combatant issues to abortion is not intended to be facetious. The moral questions and extramoral considerations have, I think, genuine similarities. It is considered completely lawful to kill an enemy combatant on sight, yet they are not merely sacks of meat without humanity or moral consideration. Their status has an ambiguity and a difficulty that is not unanalogous to the ambiguity people find in the abortion context. That ambiguity can be cut through, in both cases, if we are willing to oversimplify: we call those arguing for more humane treatment enemies of the United States just as we can call those arguing for stricter abortion laws enemies of women; similarly we can denounce people who would consider anything other than moral principles in making decisions as evil. Both forms of simplification occur, both ways, in both situations.
In my view, in both cases, it is not for courts to resolve these difficulties for us by imposing a simplification of their own: it is for the people to slog their own way through the muck as best they can. Courts, in my view, have no business tilting the scales in either case, either by downplaying moral considerations in the abortion context, or downplaying the risks and threats in the enemy combatant context.
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