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To Prosecute or Not to Prosecute:

The New York Times reports that the Justice Department's Office of Professional Responsibility recommends that the federal government reopen potential cases against CIA employees for using illegal interrogation techniques on terror-related detainees. New details of detainee abuse, contained in the CIA Inspector General's report, were leaked over the weekend. The report is due to be released today.

Meanwhile, Jeffrey Smith, who served as the CIA's general counsel in 1995 and 1996, makes the case against prosecuting CIA employees in today's Washington Post. Smith concludes:

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

ruuffles (mail) (www):
What is the statute of limitations on these charges? We wouldn't want to see them prosecuted decades later, so Obama should just grant them full pardons. After all, acceptance of a pardon carries with it an admission of guilt.
8.24.2009 9:15am
Daniel Chapman (mail):
Does it? I think we had this discussion here before, and I don't remember anyone coming up with an answer to that question. If it does, it raises the question of whether you can REFUSE a presidential pardon.

Did we end up answering either of those questions before? I don't think a pardon does require an admission of guilt... maybe an implication, but not an admission.
8.24.2009 9:23am
CheckEnclosed (mail):
The only way to stop action in conformity with illegal orders in real time is for subordinate staff to refuse to obey illegal orders.

One very good way of providing them with an incentive to do so is to make it clear that they will be prosecuted for illegal conduct, even if they were ordered to do so.

Of course, this will seem (and be) unfair if those giving the orders are not also prosecuted.
8.24.2009 9:25am
Hannibal Lector:
And maybe they'll reopen the voter intimidation case against those Black Panthers in Philadelphia?
8.24.2009 9:27am
martinned (mail) (www):
Didn't they already prosecute someone? I remember seeing a ruling from one of the Courts of Appeals recently, about misconduct during interrogation in Afghanistan.

@Daniel Chapman: Given that a pardon is a legal act for a person's benefit, I would imagine that the person for whose benefit the act is done may decline the honour.
8.24.2009 9:40am
martinned (mail) (www):
The case is US v Passaro, in the 4th circuit. As soon as my Acrobat works again, I'll check how much on point that case is.
8.24.2009 9:44am
martinned (mail) (www):
Passaro was a civilian contractor working for the CIA in Afghanistan. The CA ruling says that US courts have jurisdiction over his case. Re facts:


Sometime on the evening of the next day, June 19 [2003], the CIA commander at Asadabad authorized Passaro to interrogate Wali. It is undisputed that for the next two days, Passaro "interrogated" Wali. This "interrogation" involved Passaro’s brutal attacks on Wali, which included repeatedly throwing Wali to the ground, striking him open handed, hitting him on the arms and legs with a heavy, Maglite-type flashlight measuring over a foot long, and, while wearing combat boots, kicking Wali in the groin with enough force to lift him off the ground.

Originally, he got 100 months in prison, but the CoA remanded for recentencing, so I guess we'll have to wait and see what he'll get on his second try.
8.24.2009 9:49am
Soronel Haetir (mail):
Daniel Chapman,

Pardons can be declined. Commutation can not be declined.

Which may in fact be a good way out of the Gitmo mess. Let the guys who want to be martyrs plead guilty, have them receive death sentences, then commute to LWOP so they rot in some forgotten hole.
8.24.2009 9:57am
Anderson (mail):
and cannot be repeated

Yes, and rationalizing why CIA employees can't be prosecuted is a WONDERFUL way to make sure they won't do anything like that again.

First, these techniques were authorized by the president and approved by the Justice Department.

Begs the question. It appears that many torturers exceeded even the ample scope of the Bybee-Yoo memos.

Second, the CIA provided the inspector general's report to the Justice Department in 2004.

Right. The same administration that perpetrated the torture, didn't prosecute the torture -- and now we're supposed to think it might seem political that a new administration prosecutes the torture? On that logic, every administration can break the law with impunity, provided it neglects to prosecute itself. Proves a bit too much.

Third, after Justice declined to prosecute, the CIA took administrative action

Woooooo. That will certainly teach a lesson.

Fourth, prosecuting CIA officers risks chilling current intelligence operations

If those operations don't involve felonies against U.S. law, then I don't see the problem. If they *do*, then a little chilling seems in order.

Fifth, prosecutions could deter cooperation with other nations

So could non-prosecutions. Nations are already not confident that the U.S. can be trusted with detainees.

Sixth, President Obama has decisively changed the policies that caused so much damage

That remains to be seen, as the VC bloggers -- most of whom didn't give a shit what laws Bush broke -- have been avidly reporting since January 2009.
8.24.2009 10:22am
Constantin:
Which may in fact be a good way out of the Gitmo mess. Let the guys who want to be martyrs plead guilty, have them receive death sentences, then commute to LWOP so they rot in some forgotten hole.

You do realize there's a zero percent chance of this happening, right? The CIA already is fighting back against this idiocy, leaking the bribery rendition story last week and the Obama-CTU story today. They will bring down his presidency--I'll guarantee enough has happened under his watch to ruin him, because it's a nasty world out there--and for what? So he can try and convince the public Snowball was fighting with Mr. Jones, to distract people from the fact he's a failure?

Not going to happen.
8.24.2009 10:23am
Anderson (mail):
(Leaving aside the amazing ability to argue that no prosecutions are proper, without having read the report. Pre-judice: the act of judging in advance, without having considered the particular evidence.)
8.24.2009 10:24am
PLR:
The CIA already is fighting back against this idiocy, leaking the bribery rendition story last week and the Obama-CTU story today.
Which idiocy? The idiocy of the OPR, or the idiocy of the CIA's inspector general?
8.24.2009 10:53am
Houston Lawyer:
I would like to see copies of whatever notes were originally put in the files recommending closing of these cases as well as documentation of the discussions that took place recommending re-opening of these cases for a comparrison of which looks the least self-serving.
8.24.2009 11:11am
einhverfr (mail) (www):
I think the fundamental question is whether or not we are a government of laws. If we are a government of laws, and if the government is not above the law, then prosecutions should be done. Of on the other hand, we are a government of men, we should give the government a free pass on this.
8.24.2009 11:12am
Malvolio:
First, these techniques were authorized by the president and approved by the Justice Department.
Sure, let them plead, "I was only following orders." Worked last time.

What a terrible article. It basically makes the Nuremberg argument a few times and then make false claim of expediency (not for the torture itself, but for letting the alleged torturers go).

Whatever happened to "Let justice be done, though the heavens fall"?
8.24.2009 11:13am
Dave N (mail):
Soronel Haetir
Let the guys who want to be martyrs plead guilty, have them receive death sentences, then commute to LWOP so they rot in some forgotten hole.
I am sure you realize that the only crimes that are death-penalty eligible are first degree murder and possibly treason and espionage.

Under what legal theory has ANYONE involved with enemy interrogation committed ANY of those crimes?

Your arguments are usually better than this one.
8.24.2009 11:17am
Guest101:
How could the CIA possibly be expected to know it's not ok to threaten prisoners with a power drill if John Yoo said otherwise?
8.24.2009 11:18am
AndyCraig (mail):
Heaven forbid we actually put violent, criminal sociopaths in prison instead of desperately sick people or Honduran fishermen.
8.24.2009 11:19am
Richard Nieporent (mail):
I have a simple solution to this conundrum. The CIA personnel should all confess to being terrorists. At that instant the Left will lose all interest in prosecuting them.
8.24.2009 11:29am
martinned (mail) (www):
@Richard Nieporent: Curious... As far as I know, the Left in the US are the only ones who think terrorists should be prosecuted, instead of being tortured and locked up in some law-free zone.
8.24.2009 11:34am
Soronel Haetir (mail):
Dave N,

I was referring to the folks like KSM who we are currently attempting to try in some sort of judicial system. He wanted to plead guilty until it was explained to him that it is not allowed to plead guilty into a death sentence. I'm just saying let him plead guilty, sentence him to death, then use the commutation power to yank the martyr rug out from under him.
8.24.2009 11:36am
Dave N (mail):
Soronel Haetir,

OK, I see THAT point. I thought you were referring to the CIA operatives that some commenters here want to see in the dock.
8.24.2009 11:56am
Constantin:
Soronel Haetir,

OK, I see THAT point. I thought you were referring to the CIA operatives that some commenters here want to see in the dock.


Same goes for me. I read it wrong.
8.24.2009 12:04pm
Muskrat (mail):
"But prosecuting those who actually carried out that behavior has consequences that could further harm our nation."

Uhhhh... what? It's OK to waive prosecution of real, provable crimes because it would ... cause some people to pay for their crimes? And these people are so special they deserve to be forgiven?

Could DOJ decide that the War on Drugs is a bad idea and stop prosecuting narcotics cases? No, wait, poor minorities aren't in the 'special' category, so they have to be prosecuted vigorously. Who's special? I know--could local prosecutors stop prosecuting police brutality/corruption cases on the grounds that it would have a "chilling" effect on law enforcement?

That doesn't sound like a good idea to me. Police err and sometimes exceed their authority. They lose their temper, they go bad, whatever. We prosecute them when necessary, because it IS necessary to ensure the safety of ordinary citizens.

But apparently we don't need to ensure the safety of foreigners. Let's be charitable and assume Mr. Smith isn't discounting the value of foreign lives, but is just assuming it's all better now. No mistakes will ever be made again. No CIA officer, or other intel figure, will ever go too far, cross the line, or 'take the gloves off,' ever. Not this year, not next year, not in 30 years. Nobody with the anger of Cheney and the legal obliviousness of Addington will ever again start demanding 'results.' So we don't need to worry about deterring them. Man, that makes me feel better.
8.24.2009 12:07pm
zuch (mail) (www):
Jeffrey Smith [from the article]:
"It caused harm to our nation and cannot be repeated."
"Oh, yes, your Honour. My axe-murdering my mother-in-law deeply distressed my wife, and it cannot be repeated. I promise I won't ever, ever do such a heinous thing again. But can't we just move on? ... look forward, rather than microanalyzing the past and engaging in recriminations and finger-pointing?"

Cheers,
8.24.2009 12:24pm
zuch (mail) (www):
ruuffles:
We wouldn't want to see them prosecuted decades later...
Of course. Prosecutions (and convictions when the evidence supports it) of violations by gummint agents of duly enacted criminal laws is so ... ummmm, "yesterday"....

Cheers,
8.24.2009 12:27pm
zuch (mail) (www):
Constantin:
They will bring down his [Obama's] presidency--I'll guarantee enough has happened under his watch to ruin him....
Rrrrriiiiggghhtt. Like it did for Dubya's. Oh ... waidaminnit....

Plus: Assumes facts not in evidence.

Cheers,
8.24.2009 12:32pm
zuch (mail) (www):
Dave N:
[Soronel Haetir]: Let the guys who want to be martyrs plead guilty, have them receive death sentences, then commute to LWOP so they rot in some forgotten hole.
I am sure you realize that the only crimes that are death-penalty eligible are first degree murder and possibly treason and espionage.
Wrong:
18 USC § 2340A. Torture

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
Cheers,
8.24.2009 12:38pm
Richard Nieporent (mail):
@Richard Nieporent: Curious... As far as I know, the Left in the US are the only ones who think terrorists should be prosecuted, instead of being tortured and locked up in some law-free zone.

martinned, what other fairy tails do you believe?
8.24.2009 12:44pm
Constantin:
Plus: Assumes facts not in evidence.

Oh, they're on their way.

ABC News, today:


"Leon will be leaving," predicted a former top U.S. intelligence official, citing the conflict with Blair. The former official said Panetta is also "uncomfortable" with some of the operations being carried out by the CIA that he did not know about until he took the job.

Notice the tense. That's an overt threat. The CIA didn't stop doing what they do at noon on Jan. 20.

This is not a fight Barack wants. He should find another way to appease the Left he's failing.

And on your first point, you don't think the CIA's revelations played a primary role in destroying Bush's second term? Who do you think was leaking everything to the New York Times?
8.24.2009 12:45pm
Timber (mail):
Well, I guess when your legislative agenda fails so badly the only thing you got is living in the past and distracting with the glory days of Bush hate.
8.24.2009 12:48pm
einhverfr (mail) (www):
For those who think we shouldn't prosecute because of national interests, I would ask you again if we are a government of laws or of men? If we are a government of laws, by deciding that this is just not in our interests to prosecute, don't we undermine that?

FWIW, I don't think this is a partisan problem, though.
8.24.2009 12:58pm
einhverfr (mail) (www):
Nor do I see this as an issue of right vs left. I see it as an issue of both sides against our ideals.
8.24.2009 12:59pm
martinned (mail) (www):
@Richard Nieporent: Far be it for me to suggest that you might speak for The Right, but still: Do you agree that the inmates at GITMO should be tried in a normal US court under normal US rules or released?
8.24.2009 1:28pm
Dave N (mail):
Zuch,

You even highlighted the part that requires that DEATH occur for the statute to arguably apply. Now, can you point to a single person who has died as a result of CIA interrogation? ONE?
8.24.2009 1:40pm
Dave N (mail):
martinned,
Do you agree that the inmates at GITMO should be tried in a normal US court under normal US rules or released?
I don't speak for Richard Nieporent, but I do not agree--and here's why:

Normal US rules require a variety of procedural safeguards for the accused. Besides the obvious hearsay issues (Crawford v. Washington) and the logistical nightmare of foreign witnesses, there are some major problems with divulging U.S. intelligence that the trial you propose would require--you know, the entire divulging the identity of CIA operatives that caused the left to become apoplectic over the Valerie Plame kerfuffle, not to mention other aspects of national security.

So yes, I am all in favor of having KSM die an old man at Gitmo, even if he somehow was acquitted in a court of law.
8.24.2009 1:50pm
einhverfr (mail) (www):
Martinned:

BTW, I don't agree with that. There are a number of specific objections I have in fact.

The first is that the Geneva Conventions prohibit such trials of prisoners of war, and provides prisoner of war status as a default. Therefore, a military tribunal MUST first determine that such an individual CAN be tried. I would expect that while Al Qaeda individuals could be tried, I don't think Taliban soldiers could be. Such a determination must be made by a military tribunal PRIOR to any other proceedings.

The second issue is under what conditions actual POW's would be released. We can't just release them back into active war-zones and fighting is still ongoing in Afghanistan.

So no, I don't think you can say that all Gitmo detainees should be tried or released. I think SOME Gitmo detainees should be given a fair trial before being sentenced to stay in prison longer than active combat conditions persist in Afghanistan, but even there I am not sure that normal US rules are helpful. As wfjag pointed out, it is better to be tried by the military if you are innocent but better to be tried by civilian courts if you are guilty. I don't trust my fellow Americans to fairly judge the evidence when on juries, so I think that military tribunals, if appropriate rules for evidence can be reached, would be appropriate in that case.
8.24.2009 1:51pm
PersonFromPorlock:
einhverfr:

For those who think we shouldn't prosecute because of national interests, I would ask you again if we are a government of laws or of men?

Oh, laws, definitely. Especially the law that says the government can ignore the other laws.
8.24.2009 1:53pm
einhverfr (mail) (www):
BTW a final question on this is what sort of law one tries folks on. I don't have any problem with trying those involved in actual terrorist attacks with war crimes. However if the actual charge is being trained in an AQ camp and nothing else, I don't think normal US criminal law should apply.
8.24.2009 1:54pm
einhverfr (mail) (www):
(For example, I don't think we would have convicted someone at Nuremberg for the sole crime of enlisting in the SS. One has to prove that individual actually DID something to warrant war crimes charges.)
8.24.2009 1:58pm
Anderson (mail):
I don't trust my fellow Americans to fairly judge the evidence when on juries

Urk. Sixth Amendment, shmixth amendment?

Did federal juries somehow fail us in the WTC bombing, the Moussaoui trial, the McVeigh trial?
8.24.2009 2:15pm
einhverfr (mail) (www):
Anderson:
Juries become a lot less reliable when you are crossing cultural boundaries. We want jury trials of domestic terrorists and other criminals because it is an important check on the arbitrary use of government power against domestic political enemies.

Also I don't think the sixth amendment is or should be applicable to foreigners captured in combat operations overseas. I think we have a fundamental interest in giving such folks who are accused of crimes a fair trial, but the sixth amendment issue is really a stretch. Besides, I think these trials should be for war crimes only, and there is no tradition in this country for offering jury trials in those specific cases.
8.24.2009 2:28pm
PLR:
Now, can you point to a single person who has died as a result of CIA interrogation? ONE?

Well, I can point to 14 homicides of detainees following interrogation...

http://action.aclu.org/torturefoia/released/102405/

... and I'm personally content to let a prosecutor sort out which, if any, homicides are tied to actions of CIA personnel and contractors.
8.24.2009 2:30pm
martinned (mail) (www):
@Dave N &einhverfr: The reason why I asked is that the Left was accused of being interested in prosecuting CIA personnel but not terrorists, while it is my impression that the Left would have the Federal government prosecute both, while the Right would have them prosecute neither.

FYI, I would still favour a special GITMO court, where some of the rules of procedure are relaxed. To my knowledge there is no objection to trying them as (more or less) ordinary criminals, since they've never been labelled as POWs. Unlawful enemy combattant is not a status that actually exists in international law. Many of the detainees can be granted POW status, assuming they were captured on the battlefield and have done something that can reasonably be considered combat. Alternatively, they could be designated civilians and tried. Whichever option the government choose, they will have violated some of the detainees' rights, so the Feds may as well pick their poison.

The only problem with such a GITMO court is that the US constitution is somewhat more inflexible than the British constitution. Since I think the Constitution should "follow the flag", i.e. extend to any place where the US government exercises control akin to that of a sovereign power, and since the Supreme Court has already ruled that the constitutional habeas runs to GITMO, Diplock Courts are probably not possible.
8.24.2009 2:36pm
jukeboxgrad (mail):
dave n:

can you point to a single person who has died as a result of CIA interrogation?


Yes, and it's been known for years. More on that case here.

Details about other people we tortured to death can be found via here. (By "we" I mean US forces, both CIA and non-CIA.)

And I think these cases I've cited are separate from the list that PLR linked.
8.24.2009 2:42pm
lawyer:
@Dave N: "The interrogation and detention regime implemented by the U.S. resulted in the deaths of over 100 detainees in U.S. custody — at least."
Glenn Greenwald blog
8.24.2009 2:42pm
martinned (mail) (www):
Actually, I just noticed that the Irish also had special courts during the troubles: Special Criminal Courts. (I knew that, but I'd forgotten.)

I'm not sure how that works constitutionally, since the Republic of Ireland has a constitutional system much like the US. (Apart from not being a Federal state, obviously.) The relevant statute is the Offences against the State Act 1939.

(...)

The act refers to art. 38 of the Irish Constitution, which specifically allows for "Special courts (...) for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."
8.24.2009 2:45pm
Richard Nieporent (mail):
@Richard Nieporent: Far be it for me to suggest that you might speak for The Right, but still: Do you agree that the inmates at GITMO should be tried in a normal US court under normal US rules or released?

martinned, do you think we should have tried all of the prisoners of war during WWII in a normal US court under normal US rules or released?
8.24.2009 2:51pm
martinned (mail) (www):
@Richard Nieporent:

1. QED.

2. The people in GITMO are not, AFAIK, designated as POWs, nor could they in all cases.
8.24.2009 2:53pm
einhverfr (mail) (www):
martinned:

Sure, the Constitution follows the flag, but no right in the Constitution is applicable to every case the most broad reading of it might allow. For example, the first amendment doesn't prohibit criminalizing libel.

The questions of military tribunals is a difficult one. In general, I side with the majority in Hamdan which concluded that such tribunals would be acceptable if they provided the same rights to the accused as an American soldier would get at court martial. In essence, courts martial must provide fair trials, and therefore the substantive interests are met in these cases if the rules are essentially the same. In Hamdan, the court struck down the use of military tribunals in that case because of substantial differences in procedures which were designed to weaken the rights of the defendant to a fair trial.

The POW status question though is easily disposed of just because Bush said they aren't POW's. There are technical questions here as to when the GC's apply, and the majority in Hamdan ruled they were incorporated into the UCMJ and therefore were binding on all US soldiers at all times (including courts martial). In such an interpretation, the courts martial may not try someone until they dispose of POW status for that individual.

As for habeas at GITMO, that is old news and again it was the correct decision. However, this doesn't settle the question of whether the sixth amendment is applicable to the laws of war. I maintain that it is not but that there is still an overriding interest to a fair trial before individuals are treated in ways that would be prohibited to POW's.
8.24.2009 2:56pm
zuch (mail) (www):
Dave N:
Zuch, [y]ou even highlighted the part that requires that DEATH occur for the statute to arguably apply....
Agreed. But I pointed out that M1 wasn't required. You were wrong.
... Now, can you point to a single person who has died as a result of CIA interrogation? ONE?
Here ya go. Google is your friend, too (and if you get a login screen for the first link, try clicking the first hit on the list here).

Cheers,
8.24.2009 3:00pm
Anderson (mail):
DaveN's comment also begs the question, since we don't *know* if anyone's died as a result of CIA interrogation without *investigating*.

Certainly, as noted above, quite a few people have died in CIA custody -- an actuarially improbable number, one might suspect.
8.24.2009 3:03pm
martinned (mail) (www):
@einhverfr: If those tribunals are to observe the standard of a court martial, which includes a jury IIRC, they would be no use. If an appropriate balance is to be struck between the rights of the accused and the security of the state, you need to get rid of the jury, or at least restrict the pool from which the jury is selected, as well as get rid of the right to confront one's accuser in all cases (eg. through the use of some form of special counsel or anonymised testimony), the rule that trials shall be public and the rule against hearsay (which is connected to the presence of the jury anyway).

(Cf. section 2 and further of the Northern Ireland (Emergency Provisions) Act of 1973.)

If that is not possible, it is probably better to grant POW status to those who are eligble, and release the rest. (Which is essentially what they're doing at the moment.)
8.24.2009 3:10pm
Anderson (mail):
Meanwhile, contra the op-ed's point 6:

The Obama administration will continue the Bush administration’s practice of sending terror suspects to third countries for detention and interrogation, but will monitor their treatment to insure they are not tortured, administration officials said on Monday.

Why, exactly, do we need to send "terror suspects" abroad, if NOT to torture them, or to detain them indefinitely without due process of law (which used to be on the "tyranny" short list)?
8.24.2009 3:14pm
einhverfr (mail) (www):
Martinned

In the US, a military judge can insist on a bench trial during a court-martial. The defendant can only request a jury trial, but there is no right to one.
8.24.2009 3:20pm
EH (mail):
Anderson:
Why, exactly, do we need to send "terror suspects" abroad, if NOT to torture them, or to detain them indefinitely without due process of law (which used to be on the "tyranny" short list)?
Think of it as a special (...) court, where some of the rules of procedure are relaxed.
8.24.2009 3:24pm
martinned (mail) (www):

In the US, a military judge can insist on a bench trial during a court-martial. The defendant can only request a jury trial, but there is no right to one.

That's what I get for trusting JAG...
8.24.2009 3:25pm
Anderson (mail):
Ha!
8.24.2009 3:26pm
Anderson (mail):
(Ha! to 3:24, though 3:25 is ha-worthy.)
8.24.2009 3:26pm
martinned (mail) (www):
@EH: What? Someone is getting tried in a court of law?

Incidentally, even if that were true, that would still not mean that I'd necessarily agree that the US are entitled to transfer the detainees in this way. They should be tried by US courts, extradited, or sent somewhere voluntarily.
8.24.2009 3:27pm
Danny (mail):

I think the fundamental question is whether or not we are a government of laws.


I think that question has been decisively answered over the last 8 years, don't you?
8.24.2009 3:48pm
einhverfr (mail) (www):
martinned

Reading the UCMJ, it looks like there is a right to a trial by jury in capital cases only, but this is spelled out in statute, and the rules for jury convictions are also different (2/3rds require to convict fr most offenses, 3/4 required to sentence to life in prison, unanimous verdict required for death penalty)
8.24.2009 3:58pm
Constantin:

I think that question has been decisively answered over the last 8 years months, don't you?


Fixed (on behalf of Chrysler creditors, the New Black Panther Party, Americorps' Inspector General and, probably, every taxpayer in America, stolen from so Barack could repay the UAW by giving it General Motors).

News flash--they're all crooks. Government did not become your buddy on January 20.
8.24.2009 3:59pm
einhverfr (mail) (www):
Constantin:

Agree. Meet the new boss. Same as the old boss.
8.24.2009 4:16pm
Blargh:
Are there any circumstances under which a CIA operative or official who either committed or oversaw interrogation resulting in the death of a detainee should be prosecuted? I'm asking those here who think Holder is wrong.
8.24.2009 4:25pm
MartyA:
More proof of what a sleezy, two bit Chicago thug Obama truly is.
This is nothing more than another case of pay back for an individual/group that supported him early on and extracted a future favor from the godfather.
The Bush derangement folks are up and at 'em. That's all this is, the continuing hope that if the ultra-leftists shuffle enough paper, they will eventually find something that will allow them to say, "aha!"
I used to oppose these witch hunts against Bush/Cheney but now I don't. If we don't investigate the last administration, it will be tough to investigate the criminals and crimes of this administration.
8.24.2009 4:33pm
bloodstar (mail) (www):
Richard Nieporent:

do you think we should have tried all of the prisoners of war during WWII in a normal US court under normal US rules or released?


Considering the following
a) The previous Administration refused to recognize a number of detainees as a prisoner of war
b) That World War 2 was a global conflict where most of the crimes committed were against foreigners in other countries
c) A war crimes tribunal was set up with the agreement of the victors for the purpose of determining the fate of people accused of war crimes.
d) The vast majority of the detainees have no pending charges nor are they accused of any war crimes.
e) Do you really think World War II is the best example as we executed quite Germans for doing less than what we're hearing about. I dunno, I wouldn't want to remind people what the US did to people who used 'sharpened interrogation techniques'.
8.24.2009 4:41pm
Danny (mail):

ews flash--they're all crooks. Government did not become your buddy on January 20.


And the illegal aggressive occupation of a country that didn't attack the USA, based on outright lies as its justification, causing 1 million deaths. Torture, rape and murder of detainees, any of whom have probably done nothing wrong in particular. Imprisonment without accusation or detention. The use of a mercenary army that does not answer to the military or to all branches of the American gov't, and whose crimes are not documented, investigated or prosecuted. Spying on everyone without a warrant. Subversion of the church-state barrier to give preference to some religions over others, in violation of the establishment clause and religious freedom. Apathy and inaction while a major American city is destroyed by a hurricane and descends into anarchy. Institutionalized discrimination of LGBT minorities in violation of due process and equal protection.

And I'm not a democrat or an Obama supporter, either. I don't think the gov't became a law-abiding entity on Jan. 20. The Obama administration still holds people without trial and tortures them. They still do most or all of the things on the above list, so I don't see much substantive difference between Bush and Obama. Nor do I endorse any of the administrations before Bush. The USA has had a culture of corruption, conscious criminality and what we could call criminal ignorance for a long time, especially in politics but also permeating the entire society. People do not hold gov't responsible. That's why it is incapable of reform, and why there is no accountability. We really have what we deserve.
8.24.2009 4:41pm
Danny (mail):
I meant to say imprisonment without accusation or trial
8.24.2009 4:42pm
einhverfr (mail) (www):
Bloodstar:

Additionally, the Supreme Court differentiated Hamdan from Eisentrager because in the latter, the WWII prisoners WERE tried according to customary military court rules, while in Hamdan significant deviations existed.

If we want to follow the WWII examples, we must afford the accused the exact same protections our soldiers would get if accused of war crimes.
8.24.2009 5:01pm
einhverfr (mail) (www):
Danny:

And the illegal aggressive occupation of a country that didn't attack the USA, based on outright lies as its justification, causing 1 million deaths. Torture, rape and murder of detainees, any of whom have probably done nothing wrong in particular. Imprisonment without accusation or detention. The use of a mercenary army that does not answer to the military or to all branches of the American gov't, and whose crimes are not documented, investigated or prosecuted. Spying on everyone without a warrant.


Note that Obama's issue with the Iraq war was merely that it is a distraction from Afghanistan.

I would also note that nearly every major step the Obama administration has made on detainee issues is utterly without substance. And we don't really know whether the wiretapping programs were shut down.

(Interestingly, according to the Washington Post, the FISC HAD approved the blanket wiretaps subject to the condition that intelligence used was not to be shared with law enforcement organizations, and not to be used in obtaining search warrants but that the Bush administration had trouble complying with this requirement.)

I don't think Obama is the savior just because he won an election against someone whose last name meant "Son of Cain." And as much as I dislike Bush George III, I don't think Barack I is without major blame as well.
8.24.2009 5:07pm
einhverfr (mail) (www):
Danny, sorry missed the last paragraph of your post :-P

I agree with most of your points. Sry.
8.24.2009 5:18pm
scott (mail):
Oh the horror of it all, tell me it aint so,, A CIA GUY ACTUALLY THREATENED A TERRORISTS FAMILY, my God this is the end, I have never heard of anything so evil
8.24.2009 7:39pm
martinned (mail) (www):
@scott: You said "threatened"? Let me repeat what I posted above from the Passaro ruling:


Sometime on the evening of the next day, June 19 [2003], the CIA commander at Asadabad authorized Passaro to interrogate Wali. It is undisputed that for the next two days, Passaro "interrogated" Wali. This "interrogation" involved Passaro’s brutal attacks on Wali, which included repeatedly throwing Wali to the ground, striking him open handed, hitting him on the arms and legs with a heavy, Maglite-type flashlight measuring over a foot long, and, while wearing combat boots, kicking Wali in the groin with enough force to lift him off the ground.

As for whether the gentleman in question was a "terrorist", well, how will we know unless there is a trial of either him or the "interrogator"?
8.24.2009 7:43pm
EH (mail):
Martinned:
@EH: What? Someone is getting tried in a court of law?
Whoosh. I was using your comment as an allegory against Anderson's.
8.24.2009 8:22pm
martinned (mail) (www):
@EH: Allegory? Really?
8.24.2009 8:25pm
first history:
Now, can you point to a single person who has died as a result of CIA interrogation? ONE?

Not to dogpile on Dave N (oh, what the heck, why not), the Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, reported in March 2009 that:


There are credible reports of at least five custodial deaths caused by torture or other coercion in which the Central Intelligence Agency (CIA) has been implicated. Although the role of the CIA in these wrongful deaths has reportedly been investigated (and in one instance, a CIA contractor prosecuted), no investigation has ever been released and alleged CIA involvement has never been publicly confirmed or denied. The CIA Inspector General told me that the number of cases involving possibly unlawful killings referred by the CIA to the DOJ is classified (pp. 23-24). (My emphasis)


Further:


Mainstream media accounts and reports from civil society organizations indicate CIA involvement in the deaths of the following five people: an un-named detainee killed in November 2002 at a CIA site code-named the "Salt Pit," reportedly located to the north of Kabul, Afghanistan; Abdul Wali, killed in U.S. custody in Asadabad, Afghanistan, on June 21, 2003; Manadel al-Jamadi, killed in U.S. custody in Abu Ghraib, Iraq, on November 4, 2003; Major General Abed Hamed Mowhoush, killed at U.S. Forward Operating Base Tiger, Iraq, on November 26, 2003; Lt. Col. Abdul Jameel, killed at a U.S. forward operating base in Iraq on January 9, 2004. (p. 23, footnote 73)



Just because you don't read about something doesn't mean it didn't happen.
8.24.2009 8:28pm
nicehonesty:
Just a reminder:

Suspected terrorists dying in CIA custody = Prosecute the entire Bush administration for crimes against humanity!!!!

Suspected terrorists dying from targeted predator drone strikes (which also slaughter dozens of innocents) = Hooray Obama!!!
8.24.2009 8:46pm
Moneyrunner43 (www):
I'm curious about the criminalization of warfare. Does that mean that if we find someone who has killed an American soldier in battle, does that mean that we can try him for murder and execute him if the death penalty is decreed by a court?

Does that create any other legal problems?
8.24.2009 9:37pm
Anderson (mail):
A CIA GUY ACTUALLY THREATENED A TERRORISTS FAMILY

Suskind's One Percent Doctrine had a cogent aside on this kind of thing. Apparently, we threatened KSM with bad things happening to his kids, 7 and 9 years old. As Suskind put it:

The traditional models of debriefing, used by both FBI and CIA, involved the building of a relationship, no matter how long and arduous a process. It's the need for some human contact, some basic comfort, rather than simply the bottomless human fear, which ultimately triumphs. The captive's previous life starts to fade and is slowly replaced by one constructed, often ingeniously, by his captors. This method, which the FBI still recommends, was cancelled out by what they [CIA] did to KSM. That's the gamble. Once you do something as horrific as threaten someone's children, and it doesn't work -- there's nowhere else to go.

The point is not "be nice to terrorists," though there are certainly humane lines we shouldn't cross. The point is, "be an effective interrogator." Don't copy tough-guy bullshit off TV shows and B-movies. Do what professional interrogators do -- get inside the enemy. Emphathize with him and trick him into empathizing with you.
8.24.2009 10:17pm
einhverfr (mail) (www):
MoneyRunner:

Does that mean that if we find someone who has killed an American soldier in battle, does that mean that we can try him for murder and execute him if the death penalty is decreed by a court?


No. If the individual committed war crimes, he/she can be prosecuted by a military tribunal for those crimes. The jury in a capital case for US court martials would consist of 12 commissioned and warrant officer or, if that is impractical, no less than five.

In a non-capital case, the military judge can demand a bench trial. However killing someone in battle in a war is not a crime by itself.
8.24.2009 11:55pm
ReaderY:
Values? Values?

What do values have to do with legislation?

The Supreme Court has in recent years repreatedly characterize attempts to legislate morality as irrational and essentially unAmerican.

According to the Supreme Court, the criminal law is intended to protect American's health, safety, and welfare. Using it merely to protect their values is an inappropriate use of the criminal power.

There is no evidence any American's health, safety, or welfare was implicated by any of these activities.
8.25.2009 12:57am
Hey Skipper (mail) (www):

However killing someone in battle in a war is not a crime by itself.


IF the person doing the killing is a legal combatant.

Which none of the detainees are.
8.25.2009 2:49am
martinned (mail) (www):

IF the person doing the killing is a legal combatant.

Which none of the detainees are.


KSM is not a combatant at all...
8.25.2009 4:02am
Hey Skipper (mail) (www):
What is he, then?
8.25.2009 5:53am
Anderson (mail):
KSM is not a combatant at all...

What is he, then?

I'll answer your question with a question: what was Timothy McVeigh?
8.25.2009 9:48am
Hey Skipper (mail) (www):
Sorry, not good enough.

KSM was not American, McVeigh was.
8.25.2009 9:56am
EH (mail):
Martinned,

Again, "whoosh."
8.25.2009 11:20am
martinned (mail) (www):
@Hey Skipper: KSM has never been near any battlefield where the US were among the fighting nations. Whether he ever fought in the Afghanistan civil war, or in any other war, I don't know, but he didn't take up arms against the United States or its allies. So the United States were never his "enemy" within the meaning of the Geneva Conventions, so he cannot be detained as a prisoner of war.
8.25.2009 11:22am
SG:
KSM has never been near any battlefield where the US were among the fighting nations. Whether he ever fought in the Afghanistan civil war, or in any other war, I don't know, but he didn't take up arms against the United States or its allies

The US Congress said "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001"

KSM clearly qualifies under the Congressional declaration of war. His presence in or absence from Afghanistan is immaterial.
8.25.2009 1:53pm
martinned (mail) (www):
@SG: [Admittedly somewhat off topic, but never mind...]

The Authorisation of the Use of Military Force is not, by its face, a declaration of war. (Those went out of fashion for some reason.) It doesn't even mention war. It is an authorisation to do any number of which, including many that the President would have been able to do even without permission from Congress.

The war on drugs was no war in the legal sense, I think we can agree on that. No amount of Congressional authorisation would have changed that. If Congress passed a resolution explicitly declaring war on drugs, or even declaring war on drug dealers, drug cartels, or whatever, that still wouldn't make the war on drugs a war.

The wars in Iraq and Afghanistan are wars in the legal sense of the word. The former was a war of one state against another, and the latter is a civil war with foreign involvement. That is true regardless of what Congress has said. The AUMF matters for reasons of US domestic constitutional law. It can't make something a war that isn't, any more than that legislative enactments can make pi equal three or make the sun rise in the West.
8.25.2009 2:25pm
SG:
The AUMF matters for reasons of US domestic constitutional law.

Yes, it matters in that entitles the President to conduct military operations, which includes the taking and holding of prisoners if the President determines they were involved in the events of 9/11. KSM qualifies, and the fact that his actions were on behalf of a nation-state doesn't make his capture or detention any less legal.

Whether or not he's entitled to the full privileges of POW status is a different question but, with the AUMF, Congress made his capture legal.

If Congress passed a resolution explicitly declaring war on drugs, or even declaring war on drug dealers, drug cartels, or whatever, that still wouldn't make the war on drugs a war.

But it would have made using the military to capture and detain Pablo Escobar legal.

[Even further off-topic...]
I think the Westphalian concept of sovereignty is gradually being obsoleted. Your conception of war being restricted to nation-states is a fairly modern notion and I don't think it's going to hold.
8.25.2009 2:51pm
EH (mail):
Hamdan obviated Moneyrunner's question-begging. Do not feed him.
8.25.2009 3:01pm
martinned (mail) (www):
@SG: I'm sorry, I didn't say KSM couldn't be detained lawfully. I just said that he was not a combattant, and that he could therefore not be designated a POW. Clearly I was misunderstood.

Since you asked, the problem with his current detention isn't the fact that he is detained per se, but the fact that he was/is detained without the rights that a civilian (i.e. non-combattant) detainee would normally have.

[Following you even further off-topic...]
I agree. But one of the most important remaining raisons d'être for the state is to act as the ultimate guardian of everybody's rights. Even though profs. Posner jr. and Anderson (as well as myself) don't seem to like the ECJ's ruling in Kadi very much, the problem is mostly procedural. (I don't think the ruling is correct as a matter of international law.) If this ruling had come from a state instead of the EU, it would have been exactly right. Mr. Kadi's rights were undeniably violated, and there has to be some place where his rights can be vindicated. Normally, that place is the (Westphalian) state.

(In the Kadi case, Sweden couldn't help him, because they were bound by directly applicable EC law. That's why the ECJ stepped in and acted like it was the supreme court of a sovereign state.)
8.25.2009 3:10pm
Hey Skipper (mail) (www):
KSM has never been near any battlefield where the US were among the fighting nations ... so he cannot be detained as a prisoner of war.

Quoting Clausewitz can be tedious, but there is one dictum that sums things up very nicely: War is the continuation of politics by other means.

That makes your "war on drugs" analogy inapt. Drugs trafficking is not the continuation of politics by other means.

KSM was conducting war against Western Civilization, of which the US is a part. That makes him an enemy combatant. The question is whether he is a legal combatant under the terms of the GC. Neither he, nor any jihadist, qualifies.
8.25.2009 5:50pm
jukeboxgrad (mail):
"Qualifies" for what? If you mean 'qualifies for POW status,' you're right. But according to Hamdan v. Rumsfeld, he nevertheless qualifies for protection under GC Common Article 3. Likewise for the other 'jihadists.'

A lot of people are confused about this. I don't know whether or not you're one of them.
8.25.2009 8:05pm
Danny (mail):
@ Hey Skipper
Isn't that a thought crime? I mean if he's being prosecuted for his private beliefs instead of his conduct..

Can we detain the Republicans for waging war on Western Civilization?
8.25.2009 10:00pm
Hey Skipper (mail) (www):
jukeboxgrad:

So, if they are not POWs, what are they? NB: I am not talking about how they are treated, but rather into which category they fall.

Danny:

Isn't that a thought crime?

Gosh, I'll just bet KSM did just that little bit more than privately rail over Ms. Spears dressing too scantily.

Can we detain the Republicans for waging war on Western Civilization?

They would have to stand in line behind all the self-proclaimed Progressives, and the liberty crushing nonsense they have foisted upon the rest of us.
8.25.2009 10:37pm
Danny (mail):
For plotters/bombers I don't see the difference between KSM and McVeigh (except that there was proof that McVeigh did it - I know that under torture they got KSM to confess to the Sharon Tate murders but I'm not up to date about whether there is any hard evidence).

For individuals out of uniform who single-handedly shoot at US soldiers in other countries, some may do it because a foreigner is in their valley, others may do it out of sheer insanity, others may hate Westerners, target practice, revenge for a dead family member, revenge for US policies and collective punishment, or a host of other reasons. Isn't it a thought crime to treat them differently? Maybe it's a hate crime if they really hate Americans.

It seems to me that our justice system and Constitution served us well in the period 1783-2001. Maybe after the panicky and authoritarian Republicans and cowardly Democrats stop having fun with the constitution, they can go back to applying it. But I'm not holding my breath.
8.26.2009 1:04am
Danny (mail):
PS I think it is a ridiculous self-serving fiction to imagine that the Islamists hate us for our "freedoms" (i.e. scantily glad Britney Spears). You know that's not true, that they hate the US because the US really does a lot of evil, violent, unjustified things around the world. Funny how Mexico, Canada and Brazil seem to steer clear of all this. I don't think any Islamists have bombed the Rio Carnaval.

If one drop of American blood has been shed over a scantily-clad Britney Spears, then it's even more tragic. No one deserves to die because of a gross redneck. Now if it were for Gwen Stefani maybe it would be worth a couple people..
8.26.2009 1:21am
Hey Skipper (mail) (www):
Spain.

Argentina.

Saudi Arabia.

Malaysia.

India.

Philippines.

Thailand.

Egypt.

Morocco.

Jordan.

Mohammed Cartoons.

Salmon Rushdie.

Oh, and wasn't it Nigeria that got all torn up over the Miss Universe pageant a few years ago?
8.26.2009 6:47am
Danny (mail):
You only proved my point. Most of those examples don't even involve real international terrorism. They are either
1. Singling out a country for its involvement with the occupation of Iraq (Spain, Morocco)
2. An Iran gov't-sponsored anti=Semitic attack (Argentina)
3. Local Islamist groups trying to damage the national gov't of the country where they live (most of the other examples).
4. A neighboring country sponsoring an attack on its longtime rival (India)
5. Muslims going psychotic over some individual act of "blasphemy" (cartoons, Rushdie, Nigeria)

You didn't even mention Bali, London and various foiled home-grown attacks in countries like France and Germany which opposed the Iraq occupation, which are the cases that come closest to Islamists attacking average Westerners just because they are Western.

Again there is no evidence that these Islamists are particularly interested in your average Westerner living in the Americas. Nobody seems to be motivated to crash a plane onto Mexico City. Maybe because Mexico doesn't build military bases all over the Middle East and pick sides in everybody's internal war.

I'm not saying that Islamists or religious Muslims are nice people or that they don't hate people from other religions or that they are incapable of religious violence for the sake of it. Many people around the world think that their country/ethnicity/religion is superior to others. Supremacist movements are a dime a dozen. But few people will go to the effort of becoming terrorists over that. 99% of the violence today is politically motivated and aimed at specific nationalities for specific historical reasons.

And torturing people while babbling about "freedom" and holding presumably innocent people for years without trial has only proven the point of everyone who hates the US. Cheney is probably the person who has contributed most to expanding Islamist terror groups - and it was to his advantage to do so, because it justifies his authoritarian, statist agenda. The "strategy of tension" where a fascist gov't manufactures enemies to justify it's own antidemocratic concentration of power is the oldest tactic in the book. The world has seen it all before. That's why everyone can see through the US and its "principles" a mile away. The only gullible people still fooled are a couple Fox News viewers.
8.26.2009 9:36am
jukeboxgrad (mail):
skipper:

So, if they are not POWs, what are they?


They are people we have detained and who are subject to the protections of GC Common Article 3 (although not the special POW protections that are found elsewhere in GC).

NB: I am not talking about how they are treated, but rather into which category they fall.


They fall into the following category: people who are subject to the protections of GC Common Article 3 (although not the special POW protections that are found elsewhere in GC).

I wonder if you realize that GC does not define (or even use) the terms 'unlawful combatant' or 'illegal combatant' (it barely uses the term 'combatant'). Those terms were invented by Bush for the purpose of trying to do an end-run around GC.

==================
danny:

The "strategy of tension" where a fascist gov't manufactures enemies to justify it's own antidemocratic concentration of power is the oldest tactic in the book. The world has seen it all before.


That's for sure. And it was once described very nicely, as follows:

Naturally, the common people don't want war ... but after all it is the leaders of a country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.
8.26.2009 1:20pm
Christopher Cooke (mail):
Danny

I agree with your point that USA policies often make our country a target, but I think you are overlooking the extremist Islamists' own agenda.

Go back and listen to a translation of Osama Bid Laden's video-taped speechs. He talks about avenging the fall of Al-Andalus, which is Spain, and which happened in 1492, when the Spanish christians conquered Granada after 7 centuries of islamic rule. Bin Laden and similar militant Islamists see themselves as renewing the muslim empire that once controlled Spain, Portugal, Northern Africa, Turkey, and the entire Middle East. They want to restore the Caliphates, and impose Islamic sharia law on broad sections of the world. Now, there are historical reasons for this, ranging from essentially a grand inferiority complex on the part of many in the Muslim/Arab world, to legitimate grievances spawned by Western imperialism. But, they do want to conquer lots of countries, and impose their will and their law on the people in these countries.

So yes, I agree that Bush's talk of "evil-doers" who "hate us for our freedoms" is simplistic nonsense from a remarkably uncurious George, who sees the world in stark blacks and whites. But you underestimate the aims of Al Qaeda and similar militant Islamists. They are interested in conquest and in silencing those who criticize them for their extreme aims. I should note there was an interesting documentary on the struggle of moderate muslims against the militants called Islam vs. Islamists. Given how the Taliban treated women and harbored/supported Al Qaeda when they ruled Afghanistan, I for one hope we do succeed militarily in permanently displacing them from that country.
8.26.2009 5:03pm
Danny (mail):
@ Christopher Cooke

I agree that this is not just a vanilla resistance movement to colonialism, and everything you say is accurate. Maybe some Islamist extremists fantasize about such things, but actually a lot of fanatics around the world would like to take over a chunk of the world or the whole thing, but that doesn't mean they can. 80% of the world is non-Muslim. It has been shown that even all Arab countries acting in uncharacteristic harmony can't defeat just tiny Israel militarily. And the Islamic world is heavy decentralized and divided. So America is a bit like a panicky girl who is afraid of a legitimately ugly spider, in my view.

Terrorism is real and tragic. Maybe we will see another 9-11 or something worse in our lifetimes. But that's not a reason to let terrorism rule our lives, as the authoritarians would have it. There are a lot of more effective ways to deal with the criminal phenomenon of terrorism than treating it like a "war" against a state or grabbing random chicken farmers from Afghanistan and torturing them in Cuba until they confess to the Sharon Tate murders (and I'm only exaggerating slightly).
8.26.2009 11:20pm
Mr. X (www):
Maybe it's having just started a job defending the criminally accused, but I find the argument that we can't prosecute people who committed serious crimes because it might "harm our nation" to be reprehensible. Following its flawed reasoning protects a nation, but that nation is no longer ours.
8.27.2009 9:09am
Hey Skipper (mail) (www):
I wonder if you realize that GC does not define (or even use) the terms 'unlawful combatant' or 'illegal combatant' (it barely uses the term 'combatant').

I spent twenty years in the military. I got a lot of training on the Law of Armed Conflict. (LOAC).

The LOAC defines a legal combatant. When in combat, we adhered strictly to the requirements (specifically, uniform).

By negation, I suppose, an illegal combatant is a combatant who is not legal.

They may be summarily executed.

Also, legal combatants may not be subject to trials or any sort of public humiliation.

So, for those combatants who are not legal, not US citizens, and engaged in combat outside the US, what?

War is the continuation of politics by other means. Islamists are at war with us. Re-listen to what they say if you don't believe it.
8.27.2009 8:42pm
jukeboxgrad (mail):
The LOAC defines a legal combatant.


Citation, please. I'd like to see the definition you're talking about.

They may be summarily executed.


Bullshit. Summary execution is a violation of GC Common Article 3. And according to Hamdan v. Rumsfeld, CA3 applies to the people we've detained.

For someone who "got a lot of training on the Law of Armed Conflict" I'm surprised you don't know this.
8.27.2009 9:57pm
Hey Skipper (mail) (www):
Citation, please. I'd like to see the definition you're talking about.

Here it is.


Combatants

The Geneva Conventions distinguish between lawful combatants, noncombatants, and unlawful combatants.

Lawful Combatants. A lawful combatant is an individual authorized by governmental authority or the LOAC to engage in hostilities. A lawful combatant may be a member of a regular armed force or an irregular force. In either case, the lawful combatant must be commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly; and conduct his or her combat operations according to the LOAC. The LOAC applies to lawful combatants who engage in the hostilities of armed conflict and provides combatant immunity for their lawful warlike acts during conflict, except for LOAC violations.

Unlawful Combatants. Unlawful combatants are individuals who directly participate in hostilities without being authorized by governmental authority or under international law to do so. For example, bandits who rob and plunder and civilians who attack a downed airman are unlawful combatants. Unlawful combatants who engage in hostilities violate LOAC and become lawful targets. They may be killed or wounded and, if captured, may be tried as war criminals for their LOAC violations.


Unlawful combatants may be shot as spies in the field, and tried as war criminals after the fact.

For someone who hasn't been in combat, I am not surprised you do not know that. It was regularly impressed upon us that we had to be in uniform, and that uniform have on it identifiable rank. Because if we didn't, we could claim no protection from the LOAC, and legally be executed on the spot.

Of course, since no opponent of the US has paid even the tiniest attention to the LOAC, our paying attention to the rules was a very one sided affair.
8.28.2009 3:20am
jukeboxgrad (mail):
Here it is.


You're joking, right? You're citing about.com, a general reference site that happens to be a subsidiary of the the New York Times. You're citing an article written by Rod Powers. Who is Rod Powers? Someone who "has a degree in Personnel Administration from the Community College of the Air Force." He has written a book called "Veterans Benefits for Dummies." Yes, he's definitely an expert on GC.

This is your authority? We're supposed to take him seriously even though he says "the Geneva Conventions distinguish between lawful combatants, noncombatants, and unlawful combatants" without bothering to link to the official GC site, and without bothering to mention that GC never once uses the term "unlawful combatants?" And without bothering to quote language from GC to support these claims of his? And without once bothering to mention Common Ariticle 3, which covers all detainees?

This is what you meant when you said "I got a lot of training on the Law of Armed Conflict?" Training in finding a reference that has less detail and credibility than a typical wikipedia article?

And aside from all that, there's nothing in the article to support your bogus claim about summary execution. When are you going to show support for that claim?

Unlawful combatants may be shot as spies in the field


They may be shot if they are engaging in combat, just like anyone else engaging in combat may be shot. Before you said "they may be summarily executed." Why did you make that false claim?

Because if we didn't, we could claim no protection from the LOAC, and legally be executed on the spot.


Baloney. Repeating a false claim doesn't make it true. Even when you escalate to bold type. You're just making it more and more obvious that you know nothing about GC CA3, and you know nothing about Hamdan v. Rumsfeld.

Of course, since no opponent of the US has paid even the tiniest attention to the LOAC, our paying attention to the rules was a very one sided affair.


If you actually knew anything about LOAC, you would know that we have certain obligations that don't go away, regardless of whether or not a particular opponent is "paying attention to the rules."
8.28.2009 7:21am
jukeboxgrad (mail):
It was regularly impressed upon us that we had to be in uniform, and that uniform have on it identifiable rank. Because if we didn't, we could claim no protection from the LOAC, and legally be executed on the spot.


Being out of uniform doesn't mean you may "legally be executed on the spot." It means that you are not subject to the POW protections in GC, and only the weaker CA 3 protections. Did you really not know that?
8.28.2009 7:28am
Hey Skipper (mail) (www):
jukeboxgrad:

I picked that reference because it mirrored exactly all the LOAC training I got while in the military. In particular, we made sure we adhered to uniform requirements in case we got captured, to avoid summary execution.

That is not a false claim, that is precisely the training we received. That is my source. If you don't like it, then by all means take it up with the AF JAG.

Further, because the GC defines what a lawful combatant is, then any combatant that does not fit that definition is not lawful. That is the reason the GC doesn't bothering defining the negative, because it is obvious by inspection.


If you actually knew anything about LOAC, you would know that we have certain obligations that don't go away, regardless of whether or not a particular opponent is "paying attention to the rules."

Re-read what I wrote in that concluding para. Pay particular attention to the words I used, as well as their order and meaning.
8.28.2009 8:05am
jukeboxgrad (mail):
I picked that reference because it mirrored exactly all the LOAC training I got while in the military. In particular, we made sure we adhered to uniform requirements in case we got captured, to avoid summary execution.


We're still waiting for you to show us where about.com, or any other source, says that summary execution is legal.

the GC defines what a lawful combatant is


GC is here. GC uses the term "lawful combatant" this many times: zero.

GC does not define "what a lawful combatant is." It defines what you have to do in order to be treated as a POW. It also defines certain protections that apply to all detainees, even those who are not subject to the protections that are granted to POWs.

Please show us the text in GC that "defines what a lawful combatant is."

And if you're still confused about this, see here:

Enemy prisoners are not subject to summary execution by their captors. Military law has long held that the killing of an unresisting prisoner is murder.

Winthrop's Military Law and Precedents, 2d ed., 1920 Reprint, at 788-91.

While it is lawful to kill an enemy "in the heat and exercise of war," yet "to kill such an enemy after he has laid down his arms . . . is murder."

Digest of Opinions of the Judge Advocates General of the Army, 1912, at 1074-75 n. 3.


(Emphasis added.) This same material was also cited in a memo written for Rumsfeld in 2004 (link, pdf).

So feel free to tell us where you got the wacky idea that summary execution is legal. Because it's not. It's murder, as I just documented. So far, you have presented this many references supporting your claim that summary execution is legal: zero.

You have also failed to explain how summary execution is consistent with GC CA 3. You have also failed to explain why you are ignoring GC CA 3 even though SC ruled in Hamdan v. Rumsfeld that it applies to our detainees. And even though Bush acknowledged that GC CA 3 "applies to terror war detainees held by the United States."

Your ignorance is considerable.

Pay particular attention to the words I used, as well as their order and meaning.


What I'm paying attention to is how remarkable it is that you think anyone is going to take you seriously even though your unsupported claims are easily proven wrong.
8.28.2009 9:12am
Hey Skipper (mail) (www):
What I'm paying attention to is how remarkable it is that you think anyone is going to take you seriously even though your unsupported claims are easily proven wrong.

[Italicized passages below are essentially direct quotes from various Wikipedia articles. Starting at the Laws of War will get you them all soon enough. I trust you will find my summary accurate.]

Here is my claim: The LOAC training I received in the military is essentially identical to the cite I provided -- that is why I provided it. But keep in mind that my opinion is contaminated by only having first hand evidence to go on.


Also, you may not know that the LOAC is based upon much more than just the Geneva Conventions. For example, "unlawful combatant" has been used for over a century in legal literature, military manuals, and case law ...

By universal agreement and practice, the law of war draws a distinction between ... those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.
.

So while it is true that no conventions explicitly define the term "unlawful combatant", that in no way vitiates my claim that it has widespread use, and can be clearly understood by defining to whom the definition of POW applies: subject to a chain of command, having a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct themselves IAW the laws of war. A lawful combatant is a belligerent who qualifies as a POS; an unlawful combatant is a belligerent who does not.

Regarding the execution of spies, that comes from the late 1800s, when some European countries concluded that unlawful combatants were subject to execution on capture. Further, latter Nuremberg Trials concluded that that on the question of partisans, the then current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1, and therefore could be subject to the death penalty upon capture. Your cites from 1912 and 1920 are irrelevant for two reasons. First, Nuremberg, which came after, contradicts them. Second, and even more importantly, this element of LOAC training was not about what we could do to others, but what they could do to us, unless we conducted ourselves as lawful combatants. (It is worth remembering, as I noted above, that I LOAC training in the Air Force, which, in this regard, focussed on being shot down in enemy territory.)
8.29.2009 1:30am
jukeboxgrad (mail):
I trust you will find my summary accurate.


Uh, no. I find that your "summary" is complete bullshit.

Italicized passages below are essentially direct quotes from various Wikipedia articles


You must be joking. You're grabbing random text from "various Wikipedia articles" without even bothering to tell us which articles? The whole point of wikipedia is that references are provided, so the information can be verified. What makes you think that anyone is going to be impressed when you paste in random text that is completely unverifiable?

Regarding the execution of spies, that comes from the late 1800s, when some European countries concluded that unlawful combatants were subject to execution on capture


Indeed. Earth to skipper: it ain't "the late 1800s" anymore. In other news, slavery has been outlawed. Please keep up.

the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1, and therefore could be subject to the death penalty upon capture


You put that in italics, which means that it's supposedly a 'direct quote' from a wiki article. Therefore it's odd to find that the phrase "therefore could be subject to the death penalty upon capture" returns this many google hits, when searched as a phrase: zero.

Where are you finding this baloney? You must have some alternate internet available to you.

Your cites from 1912 and 1920 are irrelevant for two reasons. First, Nuremberg, which came after, contradicts them.


Says who, besides you? If what you say is documented in "various Wikipedia articles," where can we find those articles?

And if the cites "from 1912 and 1920 are irrelevant," then why were those exact cites used in the 2004 Rumsfeld memo I cited? What a shame that his legal staff lacks your expertise. You should have been there to tell them what they obviously didn't know, that "Nuremberg, which came after, contradicts them."

I also demonstrated that the United States Court of Military Appeals relied on those cites "from 1912 and 1920." In 1973. What a darn shame that our military judges know so much less about the law than you do. It's a travesty that they would cite rulings without realizing that "Nuremberg, which came after, contradicts them."

this element of LOAC training was not about what we could do to others, but what they could do to us, unless we conducted ourselves as lawful combatants


You're spinning like a top. Here's an idea: pick one story and stick with it. If they could do it to us legally, why couldn't we do the same to them?

And when are you going to explain how your wacky theory is consistent with GC CA 3 and Hamdan v. Rumsfeld?
8.29.2009 1:59am
Hey Skipper (mail) (www):
Italicized passages below are essentially direct quotes from various Wikipedia articles.

You will find all the content in them. I did some paraphrasing to avoid as much as possible a word wall; however, they accurately reflect the content, and I wanted to avoid the appearance of plagiarism. If, as I noted above, you start with Law of Armed Conflict and follow the internal links, you will find everything I referenced, and will consequently be able to verify everything I wrote.

++++

Just in case you missed it:

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
8.29.2009 2:18am
jukeboxgrad (mail):
If, as I noted above, you start with Law of Armed Conflict and follow the internal links, you will find everything I referenced


Baloney. You're simply making shit up. That's why you're not telling us exactly where to find it. Like this:

the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1, and therefore could be subject to the death penalty upon capture


Simple question: where exactly can that be found? 'Somewhere on the internet' is not an impressive answer.

Comment Policy


I suggest you complain to the management. Let us know if they're inclined to defend a blatant bullshitter.
8.29.2009 2:27am
Hey Skipper (mail) (www):
Look Here:


In the Hostages Trial (or, officially, 'The United States of America vs. Wilhelm List, et al.), the seventh of the Subsequent Nuremberg Trials, the tribunal found that on the question of partisans, the then current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention[6]. On Wilhelm List, the tribunal stated

"We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."[6]


Like I said, if you bothered to follow the internal links, you would have found all the information I summarized.

Oh BTW, your statement from above:

I wonder if you realize that GC does not define (or even use) the terms 'unlawful combatant' or 'illegal combatant' (it barely uses the term 'combatant'). Those terms were invented by Bush for the purpose of trying to do an end-run around GC.

As your reading, should you choose to do it, will show, those terms have been in use for at least a century. Bush did not invent them.
8.29.2009 3:26am

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