Editore"s Note
Tilting at Windmills

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September 14, 2006
By: Kevin Drum

LOSING THE WAR, PART 456....Hilzoy points out the following wording in the Graham/Warner bill on military commissions. The subject at hand is coercive interrogation of suspected terrorists:

....it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful....Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

I guess this isn't quite "I was just following orders," but a person of ordinary sense and understanding would sure have a mighty hard time figuring the distinction.

In any case, Hilzoy is actually more concerned with the habeus corpus provisions, which apply to everyone, even those known to be innocent of wrongdoing. That's your "moral basis" for the war on terror right there. Go read.

Kevin Drum 1:34 PM Permalink | Trackbacks | Comments (70)

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I can't count to 456

Posted by: kindergartener on September 14, 2006 at 1:36 PM | PERMALINK

If we suspect someone of something, they must be guilty of it.

Like, you know, Karl Rove, for example.

Posted by: craigie on September 14, 2006 at 1:38 PM | PERMALINK

whether a person of ordinary sense and understanding would have known the practices to be unlawful.


As in. . .you know, just about everything they've done.

Posted by: cld on September 14, 2006 at 1:47 PM | PERMALINK

The title says it all. Invested in losing.

Posted by: Randy on September 14, 2006 at 1:49 PM | PERMALINK

Large parts of this document seem to simply be built-in escape clauses for false imprisonment and illegal detainment after-the-fact. Essentially, CYA.

Maybe these guys DO understand they may not be in power forever. Bummer.

Posted by: wishIwuz2 on September 14, 2006 at 1:50 PM | PERMALINK

Ignorance of the law is no excuse. Never has been, never should be.

Trials of Courts Martial are for soldiers who follow unlawful orders. Sidearms are for officers who become aware that fellow officers are issuing unlawful orders.

THere is no room in a military suffering a breakdown of the honor code for those who would issue - or follow - unlawful orders. The legality of orders is articulated in the oath every soldier, sailor, airman and marine takes upon entering the service.

A seasoned officer corps is the basis of the honor code, and seasoned officers are leaving in droves because they have no faith in the civillian leadership of the military as it exists today.

Posted by: Global Citizen on September 14, 2006 at 1:59 PM | PERMALINK

Today Dan Froomkin's column quotes Bobo on that meeting with aWol in the Oval Office: "In a 90-minute interview with a few columnists in the Oval Office on Tuesday, Bush swallowed up the room, crouching forward to energetically make a point or spreading his arms wide to illustrate the scope of his ideas -- always projecting confidence and intensity."

Sounds like the room wasn't alone in being swallowed.

Posted by: Hedley Lamarr on September 14, 2006 at 1:59 PM | PERMALINK

Jason; How about "you are an errand boy, sent by grocery clerks?"

Back in 90. Gotta go to class.

Posted by: Global Citizen on September 14, 2006 at 2:00 PM | PERMALINK

Why isn't this kind of news plastered all over Page #1 of the NY Times and our other major newspapers?

Posted by: global yokel on September 14, 2006 at 2:14 PM | PERMALINK

To be fair, doesn't this create a catch-22 for a soldier in the field? If he does not have the benefit of a judge ruling at the instant an order is given, how is he supposed to determine whether or not an order is legal?

If he rejects the order, which turns out to be legal, he can be subject to court-martial. If he follows the order, which turns out to be illegal, he can be subject to court-martial. If he relies on council to help him interpret the law to decide on an action, and the lawyer is wrong, then he is totally screwed.

I understand the point - that 'just following orders' isn't an excuse. But how does one apply it to the reality of a semi-educated enlisted man in the field?

Posted by: xyz on September 14, 2006 at 2:18 PM | PERMALINK

I was just obeying orders didn't save people from getting hung at Nuremburg, and I was just following legal advice won't save the modern bunch of war criminals from hanging this time.

Posted by: Peter on September 14, 2006 at 2:20 PM | PERMALINK

Kevin, if white people do it, it is OK.

Duh.

Posted by: Al on September 14, 2006 at 2:41 PM | PERMALINK

I understand the point - that 'just following orders' isn't an excuse. But how does one apply it to the reality of a semi-educated enlisted man in the field?

xyz, given all the changes that are occurring in the military, I can no longer be sure that the standard of training I experienced ~18 years ago (damn I feel old) is still in effect (I suspect not). Still, I hope we can assume that the DI's are still pushing some sort of instruction in those oh so "quaint" Geneva Conventions. No intentional killing of civilians; no firing on hospitals, churches, schools unless the enemy is using those locations as cover for their combat operations. No inhumane treatment of prisoners; prisoners must be fed and sheltered to the degree that the unit can undertake such care without compromising their readiness. Pretty much any behaviour that feels questionable (e.g. can I put a rifle to one prisoner's head and threaten to kill him while questioning his compatriot?) is questionable and should not be undertaken without first attempting to clarify this with superiors. If superiors are odering you to do something that is a clear violation of the GC and or UCMJ, you are obligated to ask them three times if such action is really what they are ordering. If after your third request they still insist you violate the GC or UCMJ, you are obligated to disregard said orders and must attempt to place the officer or NCO under arrest until such time as you can notify the next link in Chain of Command of this violation.

The tennets of this basic scenario must be drilled into the heads of new recruits so that under fire and even after they have experienced tha anguish of losing brothers in arms their training will remain with them. It is of preeminent importance that when regular combat units like the 9th Infantry Divison or the 3rd Armored undertake combat operations across a theatre of battle that they conduct themselves in a legal manner. Anything else will cause grave harm to innocents, the cohesiveness of the present military, and tarnish the reputation of all who have served before.

Posted by: cyntax on September 14, 2006 at 2:50 PM | PERMALINK

The commenter says it all, infested with lunacy.

Posted by: Will on September 14, 2006 at 2:53 PM | PERMALINK

cyntax-

I understand, but doesn't a problem of real-time interpretation still arise? If you are just a joe-schmoe-enlisted-man with a high school education, and your superiors tell you 3 times that the military lawyers have interpreted the GC and USMJ such that denying sleep to an illegal combatant prisoner is acceptable ... how how are you supposed to know whether the order is legal? What if their superiors, and their superiors, all the way up the chain of command accept that interpretation as legally valid?

I guess the problem is that the order would need to be pretty blatently illegal to allow you to disregard it. How does one operate in the grey areas, where even legal experts disagree?

Posted by: xyz on September 14, 2006 at 3:13 PM | PERMALINK

I can't believe that with all the attention that the war is getting, we still haven't addressed the root causes of terrorism.
If the gap between rich and poor nations continues to grow, terrorists will be able to find roots in any poor countries whose peoples' are oppressed.
We need to follow the guidlines set out in the Millenium Development Goals that we agreed to in 2000, and stick to our policies regarding that.
If we do, we may see an end to all terrorism.

Posted by: stephanie on September 14, 2006 at 3:19 PM | PERMALINK

I guess the problem is that the order would need to be pretty blatently illegal to allow you to disregard it. How does one operate in the grey areas, where even legal experts disagree?

Short answer? You get hosed. Look at Abu Ghraib. Not much happened to anyone above the rank of E-6. Relief of Command (which is a bg-ish deal) but no jail time. You had MPs interrogating prisoners, and that is most definitely not their job, so who OK'd that? Why weren't the GCs posted in the prison (they're supposed to be).

Posted by: cyntax on September 14, 2006 at 3:24 PM | PERMALINK

Reliance on the advice of counsel?

I seriously doubt there were many soldiers on the field who called up their local JAG before they shackled a guy to a chair long enough to make him piss himself.

Oh, or is that provision aimed at someone else?

Posted by: Alexander Wolfe on September 14, 2006 at 3:28 PM | PERMALINK

Global Citizen wrote:

There is no room in a military suffering a breakdown of the honor code for those who would issue - or follow - unlawful orders. The legality of orders is articulated in the oath every soldier, sailor, airman and marine takes upon entering the service.
________________

I agree entirely. Therefore, it is the duty of Congress to clarify many of these issues, including:

1. What is the difference between a legal and illegal combatant and what pushishment pertains to being the latter?

2. Is there a difference between a detained combatant and a POW?

3. If any detained combatant must be given habeus corpus rights, does that extend to POWs?

4. If any detainee must be given habeus corpus rights, then with what crimes should they be charged? Are we going to make it illegal to kill or injure US troops in combat? (It isn't now.)

5. Since the military is forbidden to use most (any?) harsh interrogation techniques, is it legal for the military to turn detainees over to the FBI or CIA, who presumably will?

6. Is it legal for the CIA to detain and question people, given that the mere presence of CIA is illegal in most countries? If legal, what habeus corpus rights apply?

7. Is it legal for the CIA to detain and question an enemy who has not yet committed a specific crime? Aside from interrogation, what other CIA operations are legal or illegal? (This is important if, as some here suggest should happen) the war on terror reverts to a policing and intelligence only mode.)

It is easy to say that ignorance is no excuse, but that assumes there are statutory guidelines one should know about.

Posted by: Trashhauler on September 14, 2006 at 3:34 PM | PERMALINK

First day of law school: Ignorance of the law is no excuse.

Posted by: Robert Kimbro on September 14, 2006 at 3:38 PM | PERMALINK

But how does one apply it to the reality of a semi-educated enlisted man in the field?

Enlisted men aren't dumb. You give them examples and they understand.

Here's an example: early in the war, a journalist embedded with a field artillery unit which was reassigned to conduct dismounted patrolling reports that the battalion commander was showing his soldiers how to get information. He stuck a pistol against a prisoner's head and then discharged it into the ground within a few feet. As reported, he got the information. (facts may be off, I'm going by memory)

Publically try, convict, and put the Lieutenant Colonel away for 10-20 years for a war crime. Publish it in the Army Times. Everyone and his brother will understand that such actions are a crime and will be punished.

It's not hard - you just need to be willing to hang some poor bastards out to dry, early on.

The problem we have is that people who have committed these crimes have pretty much gotten off scott free. Remember Dilwar, the innocent taxicab driver in Afghanistan who was kicked to death over 5 days? My military mind says... I got a body. He died in captivity. Someone abused him. That someone, or his officers, gets tried for a capital crime. That soldiers who murdered Dilwar got off because it wasn't clear.

Who deliberately made it not clear? Donald Rumsfeld. Son of a bitch should be impeached by Congress and tried alongside his pack of lawyers to clear up this stain on our country's honor.

Posted by: Wapiti on September 14, 2006 at 3:45 PM | PERMALINK

Actually, one thing you learn in law school is that ignorance of the law can be an excuse.

A mistake as to non-primary law which is really equivalent to a mistake of fact is a viable defense. A classic example is that if I failed to follow all the legal prerequisites for a divorce but in good faith thought I was divorced, I would not be culpable for bigamy if I remarried.

A mistake of fact is always a defense. For example, a man who met a 17-year-old girl in a bar in Alaska and had sex with her was acquitted of statutory rapeon grounds that a reasonable person would have thought she was of age (she wasn't supposed to be in there if she wasn't 21, let alone 18). That was an appellate, not a jury decision.

now, more to the point, good faith reliance on the advice of counsel is a defense to many if not most crimes. why? because it's not "ignorance of the law", rather, it is because relying upon counsel is exactly what a reasonable person would do.

now all you armchair lawyers can bring up Nuremburg or whatever inapposite point you think you're making.

Posted by: Nathan on September 14, 2006 at 3:47 PM | PERMALINK

"Here's an example: early in the war, a journalist embedded with a field artillery unit which was reassigned to conduct dismounted patrolling reports that the battalion commander was showing his soldiers how to get information. He stuck a pistol against a prisoner's head and then discharged it into the ground within a few feet. As reported, he got the information. (facts may be off, I'm going by memory)"

Actually, that commander was punished. Second, he wasn't "showing his soldiers how to get information"....he knew there was an ambush in the area but didn't know where...he knew the prisoner knew where it was, and in desperation he held a gun to the guy's head and the guy talked.
That commander is no longer in the army and I think there were other consequences for him as well (and by all accounts he was a good soldier with a very distinguished record...he was simply overzealous in trying to save the lives of his men...you can judge him, I won't).

Posted by: Nathan on September 14, 2006 at 3:51 PM | PERMALINK

I should note that there is a category of offenses known as "strict liability" where in theory a mistake of fact or non-underlying law is not a defense.

however, virtually all strict liability offenses are of the technical traffic variety (i.e. speeding...where a broken speedometer doesn't necessarily get you off).

Posted by: Nathan on September 14, 2006 at 3:53 PM | PERMALINK

Stephanie, that old canard might have weight if it wasn't for the fact that terrorists don't come out of poor populations.

they come out of the middle or even upper classes.
you might want to look up some bios of al-qaeda members..including the 9/11 hijackers.

Posted by: Nathan on September 14, 2006 at 3:56 PM | PERMALINK

What I e-mailed Graham:

The Graham/Warner bill on detainee treatment and trials is HORRIBLE.

Any bill that DENIES HABEAS is only a fig leaf's different from Bush's plans.

Second, weakening Geneva protections to "A GRAVE BREACH" sounds Bush-like as well. Who defines what "A GRAVE BREACH" is? Rumsfeld? Alberto Gonzales?

Third, the "I DIDN'T KNOW IT WAS WRONG" defense may be one step above "I was just following orders," but it is only one step.

Sen. Graham, you did this same thing in the past with the McCain bill. Stop pretending to be concerned about what could happen to our soldiers, and REALLY be concerned about that, and what could happen in general to our standing in the world.

Posted by: SocraticGadfly on September 14, 2006 at 3:58 PM | PERMALINK

cyntax, all those items are still taught and repeatedly reviewed in our military, as they must and should be.

Just a small quibble: The oft-sneered at reference to the "quaint" aspects of the Geneva Conventions was presumably made while considering some of the more out of date provisions, such as officer paroles, town passes, rules for working and paying enlisted POWs, and the like. Some things in the GC are quaint in that they refer to a time long since past. For example:

"All effects and articles of personal use, except arms, horses, military equipment and military documents shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong to their regulation military equipment.

Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. No prisoner of war shall be compelled to accept liberty on parole or promise.

The Detaining Power shall supply prisoners of war who work with such additional rations as are necessary for the labour on which they are employed.

Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they may be employed for that purpose in the kitchens. Furthermore, they shall be given the means of preparing, themselves, the additional food in their possession.

Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use. The tariff shall never be in excess of local market prices. The profits made by camp canteens shall be used for the benefit of the prisoners; a special fund shall be created for this purpose. The prisoners' representative shall have the right to collaborate in the management of the canteen and of this fund.

Officers and prisoners of equivalent status shall be treated with the regard due to their rank and age.

The Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health.

Non-commissioned officers who are prisoners of war shall only be required to do supervisory work. Those not so required may ask for other suitable work which shall, so far as possible, be found for them.

If officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as possible, but they may in no circumstances be compelled to work."

Posted by: Trashhauler on September 14, 2006 at 4:04 PM | PERMALINK

Trashhauler is correct:

if you read the actual memo that was in fact the context.

Posted by: Nathan on September 14, 2006 at 4:11 PM | PERMALINK

http://news.yahoo.com/s/ap/20060914/ap_on_re_mi_ea/iraq_060910164779

Clap louder things will be fine

Posted by: klyde on September 14, 2006 at 4:12 PM | PERMALINK

stephanie wrote: "... we still haven't addressed the root causes of terrorism. If the gap between rich and poor nations continues to grow, terrorists will be able to find roots in any poor countries whose peoples' are oppressed."

Nathan replied: "... that old canard might have weight if it wasn't for the fact that terrorists don't come out of poor populations. They come out of the middle or even upper classes."

There is not necessarily a contradiction. To say that people are motivated to resort to "terrorism" in response to what they perceive as "oppression" of their people in a "poor country" is not necessarily to say that the individuals who are thus motivated to engage in terrorist acts are themselves poor.

So where do "terrorists" come from and what motivates them?

Nationalism, Not Islam, Motivates Most Suicide Terrorists
by Gary Olson
September 5, 2006
The Morning Call (Allentown, Pennsylvania)

Excerpt:

In his recent book, DYING TO WIN: The Strategic Logic of Suicide Terrorism, University of Chicago political scientist Robert Pape has provided an indispensable public service by collecting data from all 315 suicide terrorist campaigns from 1980 to 2003, involving 462 individuals.

His overall finding: The major objective of 95 percent of suicide attacks is to expel foreign military forces from territory that the terrorists perceive as their homeland. There is little connection with Islamic fundamentalism or any of the world religions.

The taproot of suicide terrorism is nationalism and it's "mainly a response to foreign occupation." The objective is political self-determination [...]

Pape, who has also taught at the U.S. Air Force's Advanced Airpower Studies, convincingly demonstrates that "suicide terrorist groups are neither primarily criminal groups dedicated to enriching their top leaders, nor religious cults isolated from the rest of their society. Rather, suicide terrorist organizations often command broad social support within the national communities from which they recruit, because they are seen as pursuing legitimate nationalist goals." Absent these goals, suicide terrorism rarely occurs.

Only 6 percent of the perpetrators have come from the five countries with the world's largest Islamic fundamentalist populations. (Pakistan, Bangladesh, Egypt, Iran and Nigeria). He notes, ''Prior to America's invasion in March 2003, Iraq had never experienced a suicide bombing in its history.'' Further, Pape's demographic profiles of individual suicide terrorists reveals they are not uneducated, poor, mentally unstable, lacking in prospects, or young men expecting to spend paradise in the company of 72 virgins. Almost exactly the opposite is true. The data indicates they have higher incomes, intelligence and education, are deeply integrated into their communities, are highly politically conscious and from widely varied religious backgrounds. A significant minority are female.

Posted by: SecularAnimist on September 14, 2006 at 4:17 PM | PERMALINK

Actually, that commander was punished.

He was fined $5000 (less than 1 month's pay) and removed from command; no imprisonment; apparently allowed to leave the service with full retirement. Signal sent to the soldiers: threaten captives with death and you might get your wrist slapped.

..and by all accounts he was a good soldier with a very distinguished record...he was simply overzealous in trying to save the lives of his men...you can judge him, I won't

By definition and design, all battalion commanders are very good soldiers with very distinguished records. This one apparently committed a war crime in trying to save the lives of his men.

The problem, Nathan, is that the war we are fighting is not merely on the battlefield. If we want to win this war, we must demonstrate to the people of Iraq and the world that our actions are lawful and just. Which mean we must apply the same standards to our forces as we apply to those arrayed against us. As we try Saddam for crimes against his people, so we should try our own when they commit crimes against Iraqis.

We don't need smart lawyers in order to win this war. We need ethical leaders.

Posted by: Wapiti on September 14, 2006 at 4:25 PM | PERMALINK

SecularAnimist:

um, we actually agree on something (first time ever?)

my point was that Stephanie was full of crap. to quote your quote:

"Further, Pape's demographic profiles of individual suicide terrorists reveals they are not uneducated, poor, mentally unstable, lacking in prospects, or young men expecting to spend paradise in the company of 72 virgins. Almost exactly the opposite is true. The data indicates they have higher incomes, intelligence and education, are deeply integrated into their communities, are highly politically conscious and from widely varied religious backgrounds. A significant minority are female."

Posted by: Nathan on September 14, 2006 at 4:39 PM | PERMALINK

wapiti wrote:

"He was fined $5000 (less than 1 month's pay) and removed from command; no imprisonment; apparently allowed to leave the service with full retirement. Signal sent to the soldiers: threaten captives with death and you might get your wrist slapped."
_______________

You want hard time given for scaring someone? In a combat situation?

Posted by: Trashhauler on September 14, 2006 at 4:40 PM | PERMALINK

Wapiti:

I don't think we disagree, for the most part. You'll notice I didn't defend him or state that he shouldn't be punished. I did state that I wouldn't "judge him"....why? because who knows whether in the extremity of circumstances you or I wouldn't do the same thing.

but, for the big-picture reasons that you ably stated, he had to be punished.

where we disagree is that I don't think that being forced out of the service is a "slap on the wrist" for a career soldier. far from it. I do think a long prison term as you suggested (considering that he didn't actually harm anyone) would have been a gross miscarriage of justice.

I take it you now concede that your statement "was showing his soldiers how to get information" was in error? to your credit, you did note that you didn't remember the facts clearly.

Posted by: Nathan on September 14, 2006 at 4:44 PM | PERMALINK

Just a small quibble: The oft-sneered at reference to the "quaint" aspects of the Geneva Conventions was presumably made while considering some of the more out of date provisions, such as officer paroles, town passes, rules for working and paying enlisted POWs, and the like. Some things in the GC are quaint in that they refer to a time long since past.

Given how little respect the current administration has for the GCs, due process, and justice as a general concept-- yeah, that's a small quibble. But point taken. I wouldn't want to impugn Rumsfeld when there are so many other things that can be rightfully attributed to him.
: )

Posted by: cyntax on September 14, 2006 at 4:51 PM | PERMALINK

Every soldier in Iraq has already been given illegal orders. Every soldier in Iraq should arrest their immediate superior. It is better than fragging them, which is probably unlawful.

Posted by: Hostile on September 14, 2006 at 4:53 PM | PERMALINK

The shameless hypocrite Nathan who only yesterday complained about my alleged "hateful spleen" wrote: "my point was that Stephanie was full of crap."

As I noted above, Stephanie did not assert that terrorists themselves are poor people, which is the strawman you have created and are attacking.

She wrote that "If the gap between rich and poor nations continues to grow, terrorists will be able to find roots in any poor countries whose peoples' are oppressed."

And indeed Pape's study, as discussed in the article I excerpted, found that "The major objective of 95 percent of suicide attacks is to expel foreign military forces from territory that the terrorists perceive as their homeland [...] The taproot of suicide terrorism is nationalism and it's 'mainly a response to foreign occupation.' The objective is political self-determination [...] suicide terrorist organizations often command broad social support within the national communities from which they recruit, because they are seen as pursuing legitimate nationalist goals."

So Stephanie's contention that terrorists arise, or "find roots", in "poor countries" with "oppressed people" is neither refuted by Pape's study nor is it a "load of crap" in your hateful spleenish phrase.

Helping people who are oppressed by poverty, foreign occupation, and/or foreign-supported repressive governments to achieve economic well-being and political self-determination is indeed an important approach -- probably the most important and effective approach -- to removing the root causes of terrorism.


Posted by: SecularAnimist on September 14, 2006 at 5:03 PM | PERMALINK

Trashhauler:

It wasn't a combat situation - a combat zone, yes, but combat situation, no. Apparently the LTC fired 2 rounds into a clearing barrel before firing the one next to the guy's head - appears to have occurred in a secure area from what I've read.

Do you agree that threatening a prisoner with death is a crime under the Geneva Conventions? And that, since the US is a signatory nation, this is our nation's law? The LTC in this case faced 8 years - but was never tried by court martial.

In order to have a disciplined force, we must enforce discipline. As a former officer, I believe (a) the US Army has not been particularly disciplined in Iraq, (b) lack of enforcement of existing laws is part of the problem for the slack discipline, and (c) it is better to use an officer in a very public example case than an enlisted soldier - that's what the officers get paid the big bucks for.

It didn't have to be this LTC. It could have been one of the officers at Abu Ghraib; I'm sure that some appropriate poor bastard could be found. But the Army has never demonstrated that they were interested in protecting the local people from our abuses - and that is part of the reason we are losing this war.

It isn't about individuals or their individual actions. I bear no ill will against the LTC - I think he was dreadfully wrong, but I wasn't in his boots, thank God. It's about the Army as an organization and its actions, and the US as a nation.

Posted by: Wapiti on September 14, 2006 at 5:05 PM | PERMALINK

Wapiti:

we agree. but as you suggested, someone who was manifestly derelict at AG would be a better choice than this guy. yes, he violated the GC and, yes, he was punished. the GC doesn't mandate specific sentences.

Posted by: Nathan on September 14, 2006 at 5:13 PM | PERMALINK

We at Red Kalki feel that we have done our duty in informing the citizenry.

we at cleek feel it is our duty to inform the citizenry that Red Kalki is a neo-Nazi group from Argentina.

Posted by: cleek on September 14, 2006 at 5:14 PM | PERMALINK

Kevin: The subject at hand is coercive interrogation of suspected terrorists:

And the answer at hand is: Name, rank and serial number. Beyond that, all interrogation is coercive. Even for xyz's "joe-schmoe-enlisted-man with a high school education," this ought to be fairly umambiguous.

Posted by: Joe on September 14, 2006 at 5:15 PM | PERMALINK

I take it you now concede that your statement "was showing his soldiers how to get information" was in error? to your credit, you did note that you didn't remember the facts clearly.

I can't find anything through Google that confirms my recollection.

I do remember cringing when the the case was first announced - the fact that he inserted himself into the interrogation scheme and the fact that he used more extreme measures than his soldiers had. I was taught that soldiers can provide violence quite well - one of the roles of the officers is to control that violence.

I'm guessing that part of the reason that these cases are being handled by Article 15s (a step below court martial for the civilian readers - maybe like a magistrate) is that the senior officers disagree with Rumsfeld and the DoD lawyers' cavalier view of the Geneva Convention, and refuse to punish their soldiers in a situation where the civilian leadership deliberately muddied the waters.

Posted by: Wapiti on September 14, 2006 at 5:21 PM | PERMALINK

wapiti wrote:

"It wasn't a combat situation - a combat zone, yes, but combat situation, no. Apparently the LTC fired 2 rounds into a clearing barrel before firing the one next to the guy's head - appears to have occurred in a secure area from what I've read."
______________

I don't quite recall, wapiti. From what I heard the event took place outside the wire. In Indian country, that generally passes for a combat situation. Bullets need not be flying. But, in any case, that's an element of the crime which was undoubtedly considered by the courtmartial.

Strictly speaking the Geneva Conventions aren't laws, they are conventions to be enforced by the signatories through whatever statutory mechanisms are required. I know the lieutentant colonel's act was against the UCMJ, which, together with field manuals and regulations, is where we've codified most of the GCs.

I cannot agree that the Army has not shown any interest in punishing abuse. Several officers have received punishment for their failure to control the abusers at Abu Ghraib. The rules of legal causality and responsibility still limit what people can be charged with and what sentences are received, no matter how strong the impulse to erect gallows.

Posted by: Trashhauler on September 14, 2006 at 5:46 PM | PERMALINK

joe wrote:

Kevin: The subject at hand is coercive interrogation of suspected terrorists:

And the answer at hand is: Name, rank and serial number. Beyond that, all interrogation is coercive. Even for xyz's "joe-schmoe-enlisted-man with a high school education," this ought to be fairly umambiguous.
________________

It is ambiguous - if the detainee is a POW. After that, it gets progressively hazier.

Posted by: Trashhauler on September 14, 2006 at 5:50 PM | PERMALINK

Just to clarify, not outside the wire but in a detention facility. And the suspect did reveal the details about the ambush:

    An Iraqi informant reported that there was an assassination plot against West, an artillery officer working with the local governing council in Saba al Boor near Tikrit in the "Sunni Triangle" of Iraq. The informant told soldiers that one person involved in the attack was a town policeman.

    West had the policeman placed in a detention center but interrogators had no luck at first, so West decided to take over the questioning himself.

    West later emailed The Washington Times to confirm that he had fired his weapon:

      "I did use my 9 mm weapon to threaten him and fired it twice. Once I fired into the weapons clearing barrel outside the facility alone, and the next time I did it while having his head close to the barrel. I fired away from him. I stood in between the firing and his person.

      "I admit that what I did was not right but it was done with the concern of the safety of my soldiers and myself," West told the newspaper.
      West later said the gunshots spurred the Iraqi to provide the location of the planned sniper attack and the names of three Iraqi guerrilla fighters.

Posted by: cyntax on September 14, 2006 at 5:53 PM | PERMALINK

Strictly speaking the Geneva Conventions aren't laws, they are conventions to be enforced by the signatories through whatever statutory mechanisms are required. I know the lieutentant colonel's act was against the UCMJ, which, together with field manuals and regulations, is where we've codified most of the GCs.

No, strictly speaking the Geneva Conventions are laws. They are treaties, ratified and signed by the United States government, and as such are supreme law of the land:

Article VI. - Debts, Supremacy, Oaths

....This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Posted by: Esquire on September 14, 2006 at 6:01 PM | PERMALINK

Just a small quibble: The oft-sneered at reference to the "quaint" aspects of the Geneva Conventions was presumably made while considering some of the more out of date provisions, such as officer paroles, town passes, rules for working and paying enlisted POWs, and the like. Some things in the GC are quaint in that they refer to a time long since past.

Presumably? Why? When Abu Gonzalez used the word "quaint" he wasn't discussing town passes or officer paroles, he was talking specifically about enemy interrogations. He said:

"this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

See anything in there about town passes?

Posted by: Arminius on September 14, 2006 at 6:10 PM | PERMALINK

...rather, it is because relying upon counsel is exactly what a reasonable person would do.

Rather depends on who counsel is and how much of a public idiot he's made of himself week after week, doesn't it?

Posted by: Everyone Who Reads Nathan's Posts on September 14, 2006 at 6:39 PM | PERMALINK

Is is androgenous-if the detainee is a 14 year old girl, it becomes progressively sexier.
_________________

I quite recall was titi. From here I was in the place outside the fire. In gen territory, the general passed by any combat sanctions. Flying burros need not be. Butts, in cases, is not an element or a crime the courts would consider a mistrial.

Speaking strictly the laws arent from Geneva, they convene enforcement by the senoritas thoroughly, even statutorily mechanized. I now act with lous or cornels wife, who has TMJ. Together we cudgeled most of the cigs.

I can agree that Amy was not shawnee or interested in pun abuse. Several officials have received reviews for their performance at Abu Graib. The children do not like punishment, even for their own good, if I remember correctly. It may be inappropriate to mention General Jackson, who was impulsively brutal, he did recognize war created gallows humor, but knew the law ought to be followed, including all of its sentences.

Posted by: Will on September 14, 2006 at 6:53 PM | PERMALINK

Ex-post facto law. These guys are insane.
Truly insane. I say we deport a good portion of the GOP leadership to the Hague for trial. It will make the worldwide apology go better. I am beginning to feel the shame the June 1946 Germans felt.

This GOP evil escalated quickly, didn't it?

Posted by: Sparko on September 14, 2006 at 6:54 PM | PERMALINK

aint that the truth....everyone...

One of the hardest parts of my job is to connect Iraq..to the war on terror.


gotta go..

jeopardy is coming on...

Posted by: g.w.b. on September 14, 2006 at 6:54 PM | PERMALINK

oh....and one more thing...

i like treaties as much as the next guy..

my favorite is..

cool ranch dorito's..

they are tasty..

and they help reduce global warming..

Posted by: g.w.b. on September 14, 2006 at 6:56 PM | PERMALINK

Sparko, I'm always sayin, in 20 or 30 years it'll be just like that, in that you'll be as likely to find someone who admits voting for Bush as you are to locate an admitted former member of the SS today.

Posted by: shortstop on September 14, 2006 at 7:02 PM | PERMALINK

arminius wrote"

"(Quoting the GA) 'this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.

See anything in there about town passes?"
________________

No, I don't. He might have been referring to the "name, rank, serial" number thing or perhaps he was referring to the issuance of a 6.5 X 10 CM identity card, in duplicate, to be presented by the prisoner upon demand.

But what I was referring to was the almost ubiquitous aside that the Adminstration views the Geneva Conventions as "quaint." By now that assertion has gone far beyond the questioning of prisoners.

As I said, it's a small point, but parts of the Geneva Conventions are quaint.

Posted by: Trashhauler on September 14, 2006 at 7:16 PM | PERMALINK

esquire wrote:

"(Quoting me) 'Strictly speaking the Geneva Conventions aren't laws, they are conventions to be enforced by the signatories through whatever statutory mechanisms are required. I know the lieutentant colonel's act was against the UCMJ, which, together with field manuals and regulations, is where we've codified most of the GCs.'

No, strictly speaking the Geneva Conventions are laws. They are treaties, ratified and signed by the United States government, and as such are supreme law of the land:

Article VI. - Debts, Supremacy, Oaths

....This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
_______________

Yes, esquire, I agree. Since you made the same point as in another thread, I'll respond with the same:

esquire, I agree that treaties, such as the Geneva Conventions, are the "law of the land." But are they actionable statutes, in and of themselves? What is the punishment for violation of a specific protocol within the Conventions? Who is the Convening Authority to judge such a crime?

You will agree, I presume, that enabling statutes and procedures are required to enforce the Geneva Conventions?

I am minded that there are many treaties and conventions that are the "law of the land" which require enabling legislation to enforce. I'm very familiar with the 1944 Chicago Convention, which governs air transport between nations. However, I am unaware of anyone who has ever been formally charged with "violating the Chicago Convention." What they are charged with is violating FAA and ICAO regulations and such other statutes are passed by each country that are required by the Chicago Convention.

So, once we get past the pedantics, I ask you again, are the Geneva Conventions actionable in themselves or do they need enabling legislation?

Posted by: Trashhauler on September 14, 2006 at 7:49 PM | PERMALINK

Trash Hauler: the UCMJ specifically implements the Geneva Conventions and requires recurrent training in the laws of armed conflict for the military (with actionable consequences). Coercion to defy, or orders to commit violations of those standards by superiors and the commnader in chief are war crimes, punishable by whatever specific criminal statute they violate (brutality covers hundreds of specific offenses). Here is where Bush and the people he intimidated to commit crimes are running into trouble now. Alberto's made-to-order MFR allowing them freedom to disregard the Covention is actually evidence they intended to violate the law--thus they are carefully parsing the new legislation to cover their own asses (competent legal authority told them they could--he knew what they wanted and carfeully crafted a "quaint" rationale--plus he didn't have the competency in Constitutional law to render an opinion). It is akin to cooking the books as a CEO to cover embezzlement or fraud.

The unlawful torture orders, the violation of the FISA statute, the ordering of the Plame outting and smear, and the likely cover-ups of other malfeasance are orders of magnitude beyond impeachable offences. What we have is an out-of-control admintrative branch, the likes of which have never been seen before in this country. Bush's library will be spread about the country as criminal evidence--and that is no joke.

Negligence leading up to 9-11. Torture. Domestic spying (on political enemies too???). Financial improprieties (DeLay, Ney, Abramoff et al). Paid propaganda (in violation of federal statute). Deceiving Congress on Iraq. Launching war of agression of false allegations. Cronyism and illegal contracts funneled to COP friends. Intimidation/extortion of donors (see the Noe case), and on and on and on. . .

Pretty serious, non-partisan stuff. I think we are all a bit shocked at just how savagely off kilter these guys are. I blame Rove and Cheney for a lot of the mess. They saw everything in terms of politics and simply lost whatever rational perspective they could have hoped to achieve. GWB never struck me as an innovator or policy maker, so he was just a front all along for some pretty dark forces.

Posted by: sparko on September 15, 2006 at 12:04 AM | PERMALINK

If someone hasn't mentioned it already, there was an experiment involving obedience to authority by Stanley Milgram in 1974.

This is what happens to a people who are deliberately NOT taught to be free thinkers.

Posted by: NeoLotus on September 15, 2006 at 12:32 AM | PERMALINK

Oh, see also Mencius (~300BC):

2A:6 All men have the mind that cannot bear to see the suffering of others. The ancient kings had this mind and therefore they had a government that could not bear to see the suffering of the people. When a government that cannot bear to see the suffering of the people is conducted from a mind that cannot bear to see the suffering of others, the government of the country will be as easy making something go round in the palm.

When I say that all men have the mind which cannot bear to see the suffering of others, my meaning may be illustrated thus: Now, when men suddenly see a child about to fall into a well, they all have a feeling of alarm and distress, not to gain friendship with the child's parents, nor to seek the praise of their neighbors and friends, nor because they dislike the reputation of lack of humanity if they did not rescue the child.

From such a case, we see that a man without the feeling of commiseration is not a man; a man without the feeling of shame and dislike is not a man; a man without the feeling of deference and compliance is not a man; and a man without the feeling of right and wrong is not a man.

The feeling of commiseration is the beginning of humanity; the feeling of shame and dislike is the beginning of righteousness; the feeling of deference and compliance is the beginning of polite courtesy; and the feeling of right and wrong is the beginning of wisdom. Men have these four beginnings just as they have their four limbs.

Posted by: NeoLotus on September 15, 2006 at 12:38 AM | PERMALINK

Esquire gets it right, vs. Nathan, Cyntax, Trashauler, etc.

The Genevas, per the Constitution are part of the supreme law of the land.

Posted by: Socratic Gadfly on September 15, 2006 at 1:14 AM | PERMALINK

NeoLotus:

thanks for bringing in the classic demonstration that, pace the Asian values crowd, the essential concepts of human rights are universal. Which is why the idea of "crimes against humanity" makes sense.

Posted by: brooksfoe on September 15, 2006 at 1:34 AM | PERMALINK

Socratic Gadfly, thanks, but that was already covered. The specific question was, Do the Geneva Conventions also need enabling legislation? Do you agree?

Posted by: Trashhauler on September 15, 2006 at 1:40 AM | PERMALINK

Trashhauler, isn't the correct term "implementing legislation"?

Posted by: brooksfoe on September 15, 2006 at 2:10 AM | PERMALINK

Probably, brooksfoe. I'm not a lawyer, I just work with 'em from time to time.

Posted by: Trashhauler on September 15, 2006 at 3:44 AM | PERMALINK

You will agree, I presume, that enabling statutes and procedures are required to enforce the Geneva Conventions?

Yes, and they have been passed. The War Crimes Act of 1996, for example, makes it a crime to act in violation of the Geneva Conventions. See Federal Law 18 USC Sec. 2441:

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. As used in this section the term war crime means any conduct

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

Posted by: Esquire on September 15, 2006 at 9:49 AM | PERMALINK

Trashhauler: ...actionable statutes, in and of themselves? What is the punishment for violation of a specific protocol within the Conventions?

Well, according to the War Crimes Act the penalty is "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death" -- i.e. depending on the offense imprisonment up to and including life imprisonment and/or the death penalty.

Posted by: Esquire on September 15, 2006 at 9:52 AM | PERMALINK

esquire, that was my point. It is essential that enabling, or implementing, legislation is required for the Geneva Conventions. Aside from the War Crimes Act, we also have the UCMJ, field manuals, and numerous regulations that codify the specific GC requirements into US law.

If someone commits a war crime, they are charged with violation of 18 USC Sec. 2441, rather than the Geneva Conventions.

Posted by: Trashhauler on September 15, 2006 at 10:34 AM | PERMALINK

I don't know who the hell got the idea that I said the Geneva Conventions were not part of "the law of the land"

but yes, like other treaties, they do need enabling legislation (that is the term of art, not "implementing")...which they do have...most notably the UCMJ.

but gosh, this is a real and unnecessary tangent...

Posted by: Nathan on September 15, 2006 at 10:55 AM | PERMALINK
You want hard time given for scaring someone? In a combat situation?
That was a mock exectution, which falls under the definition of torture and constitutes a war crime. That officer should have spent time in prison with loss of pensionand rank. Posted by: Peter on September 15, 2006 at 1:34 PM | PERMALINK

Peter wrote:

"That was a mock exectution, which falls under the definition of torture and constitutes a war crime. That officer should have spent time in prison with loss of pensionand rank."
_____________

Then, I guess he's lucky you weren't on the courtmartial or anywhere in his chain of command, eh?

Posted by: Trashhauler on September 15, 2006 at 4:58 PM | PERMALINK

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Posted by: dd on September 17, 2006 at 8:32 AM | PERMALINK




 

 

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