What if - to up the ante a bit ....
1. The extraordinary rendition to a third party, more than willing to torture and kill the three sons, is a reality. The interrogators' friend has both the means and intent to render (pun intended) the sons and carry out the threat.
or to up the ante even a bit more ...
2. The interrogators are made of stronger stuff and don't need a third party to do their work. They are able and willing to carry out the threat themselves.
and, finally, if the threat does not work ...
3. The interrogators execute the threat by successively torturing and then killing each of the three sons.
Do these altered facts change the answers ?
My effort not to be first was successful...
STARTS:Written 2040 CDT, 10 Jul 09 but I'm not going to be the first to post... :D
Here's the unedited reponse.
Quote:
Do you think this technique is moral or ethical or otherwise sound practice? Why or why not?
Marginally moral, not enough information to form a total moral evaluation. Regardless, it is not sound practice and I would not do it for the very practical reason that no one man is ever likely to be that importan as this action would almost certainly be disclosed. IOW, don't do it, probable result is not worth the potential downstream hassle.
Quote:
Do you have an opinion on the legality of this technique (whether it is or should be legal, etc).
I do not think it should be illegal -- there are too many unenforceable laws about, we don't need one more. It should however IMO be discouraged or regulatorily prohibited for the reasons I stated above. If the punch line is what I suspect, I'll still go with the decision above. :D :ENDS
Got no awards to pass out but you do get
The apple that fell from the tree ....
Does the "Fruit of the Poisonous Tree" extend as far as this:
Quote:
from LawVol
If the answer to the first question suggests no legal basis for holding the wife, then everything that happens after is tainted by that fact.
....
from Ken
Given no legal basis for custody of the wife or kids, all that follows would be illegal.
and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?
Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?
Really interested in seeing the punchline
But as others alluded to the problem I have with this is very simply left to a couple of variables.
Who's being interrogated
Why
What will be done in relation to that why
And most importantly by whom /how
If the reason isn't tied to the who your interrogating then regardless the validity of your concerns (there's a whole lot of consequences in regards to the population your dealing with)
Better be a whole lot more to the why then simply (they might know)
Because the actions about to be taken in reponse to any information obtained and the whos performing those actions will have a lot to deal with should something be wrong anywhere in the process
Finally if the who is a US soldier theres a whole lot of long term issues with the whole idea of being able to temporarily detach themselves from those things they regard as proper within the context of their own lives and if you get it wrong you may well not know it till their home and all hell is breaking loose.
Just my thoughts (uninformed by any practical application)
99 USC-White, of course. Why do you ask?
Quote:
Originally Posted by
jmm99
and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?
Given the hypothetical, no reason was shown for the custody of the Wife. If it's only due to the fact that she's the spouse and hasn't been picked up for her own actions, intimidation is a misdemeanor most places and in some a felony if weapon is used or harm results. Last time I heard, anyway. That could well apply even if her custody was not solely due to the relationship; intimidation is intimidation. Then there's this:
""Uniform Code of Military Justice art. 31(d), 10 U.S.C. § 831(d) (2000) (“No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against [the accused] in a trial by courtmartial.”).""
We dunno whether the interrogator is military or not...;)
What we do know is that there is a distinct possibility a Court Martial could rule that coercion was used. Even if the Court Martial does not, the Civil suit by Wife or Terrorist Husband after release from Elba or a fifth Cousin 14 years later may so rule.
Since I'm me and I can't visualize a situation where I'd be interrogating unless I was in the millinery, that was my rationale...:wry:
Quote:
Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?
Not stated. :eek:
But in this day it certainly could...
None of which affects me because it would be, IMO, stupid and I'm not going to do it based on the information thus far given -- mostly so I don't get cross flogged by you and John over one sorry Dude who is unlikely to hold the fate of the free world in his hands (or, if he does, that should have been stated)... :D
Some links on the Hill case.
About 75 links appear on Googling - "roger hill" "article 32", of which, here are three: What Happened? (by Puckett & Faraj, attorneys); Interrogating Army 'justice' (Wash Times op-ed by Andy O'Meara, Tom McInerney and Paul Vallely); and Help Captain Roger Hill (by his wife).
Law for Schmedlap's example?
Rifleman,
I suspect that the British soldiers action was influenced by the Common law offence of Assisting an Offender (incorporated into statute in 1967) and the wife's refusal to help may have enabled her arrest. Post-VE day the situation in Germany was hardly normal and some form of emergency or military law was available.
Since 1967 additional offences have appeared in statute regarding terrorism notably e.g. failing to report etc.
I am not a lawyer and Schmedlap's example is set in 1945, before my arrival.
davidbfpo
I understand the desire to nitpick the circumstances ...
But the context and details of the story are only marginally relevant. Debating what would have happened if she had refused to provide the information only obfuscates the point. If she had not provided the information, then the plane's engines would have been shut down, she would have known that we were bluffing, and then she would have told all ten people who would listen to her that we bluff. So what?
Other details are also only marginally relevant in my opinion. The main thrust is whether such a practice is moral and legal. I won't comment on legal except that if it is legal in policing work in the U.S. (which it is), I cannot possibly see how it could be illegal in warfare, conventional, counterinsurgency or counterterrorism.
As for the morality of the practice, I cannot see how it could be immoral. In the story we lied to the woman. So what? I can make a Biblical and moral case for lying and deception under many different circumstances, not the least of which is warfare. The enemy is not entitled to the truth. While I don't believe in situational ethics, it's also important to realize that morality is not exlusively deontological (long story, I'll be happey to elaborate in an e-mail to any interested party).
Finally, as for duress, I have no problems with causing distress to the enemy. In your story the woman may not be the enemy, but it simply must be understood by our morally preening society that warfare involves corporate accountability, and that the conduct of war unavoidably and necessarily involves harm to the land, infrastructure, and even though we try to avoid it, noncombatants. In this particular story we have not harmed the woman, only caused her emotional distress. So much the better, because if we get the information we want, we may be able to save lives of our own servicemen. To me, this story presents the clearest picture of a win-win situation. She is unharmed, and we save lives.
As for unavoidable collateral damage and harm to noncombatantct, it is a function of the nature of armed conflict. If the nation doesn't like it, they should consider this fact prior to launching a campaign rather than attempt to change the nature of the thing that they have started.
As one final thought, harm to noncombatants (while this is a little far afield from the subject of the post) does do harm to the overall campaign and of course should be avoided to the extent possible, while also not restricting the right of self defense. But I agree with Ken (I believe it was he who made the point) that I don't believe that anyone is this important. In general, I am no fan of the HVT campaign because I think it is largely ineffective (here I am not referring to the drone campaign in Pakistan, but the SOF raids in the middle of the night to capture mid-level Taliban commanders who will be released later anyway).
Now that I have taken the discussion too far afield, I'll sign off.
Slap, you're losing me a bit on this one ...
Quote:
That is the whole problem with guerrilla warfare....because they don't fight by the rules by the time you figure out which category they are in you may be dead or have lost the war.
The point of the FMs is to relieve platoon, company and battalion combat personnel from classification problems (for detainees) - thus, the generic classification of "detained persons". The general idea of the FMs is to preserve evidence at the lower levels and leave interrogations and classifications for higher levels in the chain.
That being said, CPT Hill's case illustrates two real problems - (1) a breakdown at the battalion and higher levels in regard to indigenous security risk detainees and how they were handled; and (2) totally inadequate forces at the tip of the spear (his company of about 60 was eventually replaced with a force of 1200).
If you are referring to the rules regarding initial contact (kill or capture), you may have a point depending on how the local ROE/RUFs are phrased - and how well educated and trained in those rules the troops are.
Where the concepts of the SROEs and SRUFs are followed (in drafting the local rules), the problem you cite (classification by status) shouldn't occur. The SROEs and SRUFs always default to a conduct standard (a hostile act or threat on the part of the target allows proportionate self-defense on the part of the soldier).
Status classification at the contact level comes into play only where a hostile group is defined by NCA (let's say AQ). In that case (positing that there are no constraints placed on the Laws of War by local ROE/RUFs), kill or capture of one of those defined targets is allowed at any place and any time. The practical problem is identification of the status target hidden amidst the population and hitting the right person (e.g., CORDS-Phoenix in Vietnam, which detained or converted twice as many VC cadres as it killed).
I have no idea of the precise local ROE/RUFs that CPT Hill's unit was operating under (and probably they are classified). So, they may have been the problem, or at least contributed to the problem.
Slap, I wish we lived in something close ....
to an ideal world, but we don't. If we did, CPT Hill would have been able to call in his partnered gendarmerie unit since indigenous security risks and interrrogation of them would be part of that unit's function. Of course, we do not have gendarmerie units. So, CPT Hill is told to Make Do; expected to say Can Do; and everyone lived happily ever after. Except they didn't.
While I won't go so far as your "total immunity", my two cents worth is that CPT Hill should have been pulled out, sent back home and given enough time to decompress, and then promoted to MAJ. That's an emotional response, I know.
As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.
And, yes, these wars are "Fugged up" - no doubt about that one.
Soldiers and preparing for trial
Quote:
Originally Posted by
LawVol
(taken from) The job of our combat troops is to reduce the threat not prepare for a trial.
Sometimes combat troops do have to prepare for a trial, from a UK perspective in Northern Ireland the Army did adjust to preparing for a trial, perhaps not in the early days. Towards the end the Army down to soldier level were very forensically aware and that information gathering through intelligence could become evidence. Others can comment on Malaya and other insurgencies which predate my horizon.
Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?
davidbfpo
Detroit, a lesson learned in how not to do it ...
Quote:
from David
Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?
Ken White can tell you the story from a military and police standpoint, since he was on the professional team that went in and managed to bring some order to chaos.
My experience was post-Ken's (by a couple of weeks), as part of the editorial team from Michigan Law Review that investigated and wrote up a report on the legal aspects - which I don't think is online.
Very simply, Detroit in its legal aspects (particularly, perservation of evidence) was well beyond "Fugged up".
JMM's overall assessment is I susepct quite accurate.
But the actual operation was straightforward and non problematical for us (if not for the Detroit P.D. or the poor Michigan National Guard). The only round fired in my Brigade was a harmless accidental discharge. We did throw some CS Grenades which dispersed the crowd of protesters intended but which also wafted into the City Jail. The prisoners, of course, not having masks...
Both at Little Rock, putting kids in school in 1957 and Detroit keeping kids out of jail in 1967 there were minor incidents that resulted in criminal charges before Federal Magistrates or Courts and in both State Courts. There were remarkably few detentions and most were simple and clearcut. In both cases, dues to the extremely short notice deployment, there was no preparation of the troops and no added training; everyone just acted with decency and common sense and there were no difficulties. People did have to testify in court. In Little Rock we stayed and to my knowledge all trials completed before we left. Detroit we left almost as abruptly as we arrived and witnesses were going back and forth for months afterward.
Later, in preparation for deployment to Washington DC for some anticipated riots, classes were given to the entire Division, all three Brigades -- most by civilian police officers, local North Carolina and from DC, some by JA Officers -- on arrest (of civilians not done by the US Army), detention (we do that, turn 'em over to civil authorities), evidence collection, witness statements, the whole forensic bit -- mile wide and an inch deep due to time constraints. In the event, a couple of other Brigades went but we didn't get to use the training. Fortunately, we went to Viet Nam instead. :D
I've been busy and off of here for awhile....
Just catching up.
But saw this while taking a lunch break and thought to post it here:
http://www.foreignpolicy.com/article...icence_to_kill
License to Kill
When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.
BY AMOS N. GUIORA | JULY 13, 2009
Short but very intersting read. He is a graduate of the law school at Case Western Reserve interestingly enough. Great perspective on these issues he brings to the table.
http://www.law.utah.edu/profiles/?PersonID=6581