Crimes, War Crimes and the War on Terror

[marct]

Hi Ken,

That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.

Unfortunately, AQ might, and I say that advisedly and with much gnashing of teeth, fall under the "other militias" clause. Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

Disagree with the first, but agree with the rest . The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...

Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.

You know, we really do agree on a lot of things ! Personally, I have no problems with that - in fact, I have a lot of problems with a mind set that says "Oh, he must be a victim!". Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers. I'm not ready to call the Crown to account on that one.

An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it.

Ken, I'm sure that you will stick around just so you can say "I told you so!!!!" . Actually, we agree on the need for children to learn that their actions have consequences. Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...

[JJackson]

why are they illegal anything?
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
If I declare Ken an illegal combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.

[Rex Brynen]

Nothing wrong with that . Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

The UN does actually, under some circumstances, produce laws--both in the sense that UNSC resolutions are (supposedly) binding on members states, and in that UN conventions comprise treaty law which are, when entered into by the Execute and duly ratified by the US Congress, comprise US law under Article VI.2 of the US Constitution.

That's a quibble, however

The Optional Protocol to the Convention on the Rights of the Child (2002) prohibits the recruitment or use of children in armed conflict, but doesn't actually say what you are supposed to do when you capture one, beyond stating (rather ambiguously):

States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

One could argue that incarceration in Gitmo is "demobilization" of a sort (although I wouldn't).

More broadly, there are several reasons for playing by the rules of international humanitarian law:

1. Reciprocity--because you want others to. Of course, its doubtful AQ will, but nonetheless one doesn't want to erode global norms that may be useful in other contexts.
   
2. Because you agreed to, and you don't want to erode your credibility in future treaty negotiations.
   
3. Because of the political costs of not doing so (for example, the enormous cost of IHL violations at Abu Ghreib), or the political gains from doing so. I would argue that Gitmo policies and procedures have been a significant self-inflicted wound for the US, although I recognize that the issue is an inherently difficult one.
   
4. Because its the right thing to do. I actually think this is important.

I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.

There, having established my credentials as a defender of the indefensible (lawyers), I'll next defend the Air Force...

[Ken White]

The UN does actually, under some circumstances, produce laws...That's a quibble, however

A valid one. However, the UN item acquires the force of law only as it is codified by the ratifying state -- and the US is notorious for not ratifying or placing many exceptions in its ratification process.

More broadly, there are several reasons for playing by the rules of international humanitarian law:...

I agree with all those. As I said, we may or may not be legal; I'll leave that to the Lawyers, not my field -- but we sure weren't smart (and I minored in Stupidity...).

I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.

Nor do I disagree with that -- with the caveat that excessive idealistically derived but legitimate humanitarian concerns sometimes have effects that are not what the originators envisioned. See Steyn, M. and Section 13.1 of the Canadian Human Rights Act. Comes under the heading, I believe, of 'be careful what you wish for, you may get it...'

There, having established my credentials as a defender the indefensible (lawyers), I'll next defend the Air Force...

Masochist!

[CloseDanger]

"If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory."

They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.

They are noncomformists to civilization as a whole. No one can explain to me why their rights should be covered under the Constitution at all, much less given more rights than our Soldiers have.

There is only the argument.
The supreme court debunking the US Congress in a legal decision raises my awareness to the deep degradation of our legal system. I AM disappointed to say the least.

Our legal system is for our citizens who have rights. Not phlem flam from some throwback century. The supreme court followed the sheep over a cliff on this one.

[jmm99]

-------------------------------------------
A bit more on Timothy E. Flanigan

http://www.sourcewatch.org/index.php...hy_E._Flanigan

Prior to joining the Administration [in 2005], Mr. Flanigan was a partner in the law firm of White & Case LLP. ....

Flanigan served as senior law clerk to the late Chief Justice Warren E. Burger from 1985-1986. ... He served with the law firm of Milbank, Tweed, Hadley & McCloy in Washington, DC, 1988 - 90; and the law firm of Shearman & Sterling, 1986-88. ....

He also was a partner at Jones Day when he ran into John Yoo (see above).

Once, it would have been very unusual for someone to be an associate-partner at 4 major law firms. But, that was 40 years ago when I retired from that arena. Looks more like major league baseball today (if Flanigan is anywhere near typical ?).

--------------------------------------------
Caveat: Many of the links below present the Lederman-Balkin viewpoint. So, no endorsement from me - I reserve the right to agree, disagree or simply be confused.

Here is a very large collection of on-topic links

http://balkin.blogspot.com/2005/09/a...ion-posts.html

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC

Marty Lederman

For ease of reference, we've grouped together [and updated] our posts on the complex of issues raised by torture, interrogation, detention, war powers, Executive authority, the Department of Justice, and the Office of Legal Counsel.

Also, another bunch here

http://balkin.blogspot.com/2006/12/a...ure-memos.html

The Anti-Torture Memos

JB

The Anti-Torture Memos
Arranged by topic

Finally, Lederman's comments today:

http://balkin.blogspot.com/

Wednesday, June 18, 2008
By Contrast, Here's an Administration Attorney Who Takes His Public Service Seriously -- Important Revelations from Dan Levin

[marct]

"If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory."

They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.

Whether or not they are signatories is not germain to the argument - the US is a signatory.

Our legal system is for our citizens who have rights. Not phlem flam from some throwback century.

Your legal system, including all of your rules of evidence, "rights", etc., is for whomever your government agrees to cover which may, or may not, include your citizens and those of other nations. Rule of law has nothing whatsoever to do with whether or not the people who are detained have ever signed a convention (individuals don't) or are citizens with rights (as opposed to either citizens without rights or non-citizens), but it has everything to do with the US government keeping its pledged word to the international community.

[jmm99]

Hi Marc,

One small point on the following from your post:

... it has everything to do with the US government keeping its pledged word to the international community.

That "pledged word" is always subject to the US Constitution, as reflected in Reid v. Covert and other cases. Sometimes, that is stated in an express reservation to the treaty; but, it is always implicit if not expressed:

http://en.wikipedia.org/wiki/Reid_v._Covert

Reid v. Covert, 354 U.S. 1 (1957), is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty," although the case itself was with regard to an executive agreement and the [sic, "a"] treaty has never been ruled unconstitutional.

The case involved Mrs. Covert, who had been convicted by a military tribunal of murdering her husband. At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and United Kingdom which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. The Court found that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." The Court's core holding of the case is that civilian wives of soldiers may not be tried under military jurisdiction, because the Fifth Amendment's grant for military jurisdiction, i.e. "except in cases arising in the land and naval forces" cannot sweep in the jury-trial requirement reflected in the Fifth and Sixth Amendments.

Links to opinions in Reid v. Covert are at:

http://en.wikisource.org/wiki/Reid_v._Covert

Executive agreements (whether congressional-presidential or presidential only) and treaties are subject to the same limitations - and can validly cover the same subject matter. I wrote on that topic 40 years ago (my only academic publication ).

Constitutional Law: Executive Agreements: International Law: Executive Authority concerning the Future Political Status of the Trust Territory of the Pacific Islands. Michigan Law Review, Vol. 66, No. 6 (Apr., 1968), pp. 1277-1292 (article consists of 16 pages) Published by: The Michigan Law Review Association.

GC's (especially common Art. 3) are more of a quagmire. Still struggling with those in light of the recent cases, without reaching any firm conclusions.

[Tom Odom]

Joe Galloway's latest on MG (ret) Taguba--also on Ebird today

Commentary: Gen. Taguba knew scandal went to the top

Tony Taguba knew something about prisoners in wartime long before the Pentagon ordered him to investigate the torture and shameful mistreatment of Iraqi detainees revealed by those soldier photographs taken inside Abu Ghraib prison.

You see, his father, Sgt. Tomas Taguba, was a soldier in the famed Philippine Scouts and was, briefly, a prisoner of the Japanese after Bataan fell in the opening days of our war in the Pacific. Sgt. Taguba escaped during the Death March and spent the next three years spying on the Japanese and relaying the information to U.S. forces.

In the preface to a damning report on the treatment of Guantanamo detainees by a group called Physicians for Human Rights — which had examined and interviewed 11 former Guantanamo detainees freed without charges — Taguba declared that there was no longer any doubt whatsoever that President George W. Bush and others in the White House had committed war crimes. Related article

[walrus]

A respectful reply to Schmedlap's question:

I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

I think it is easier for people from outside the United States to answer this question for you because we are far enough away to see the wood from the trees as it were.

I draw your attention to the first sentence of the Second paragraph of The Declaration Of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

The short answer to your question is that one of those unequivocal, unalienable rights is due process.

Now it was The Declaration of Independence that skewered the U.S.S.R. Most foreigners who can read will have read it at some point. We admire it. There is no equivocation, no "some are more equal than others". So to see America pussy footing around that statement of belief, around about rendition, "enemy combatants", what constitutes torture and access to the legal system or some other form of due process was, and is, very unsettling to foreigners.

It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile. This is not a good position from which to negotiate as we may all find out in the next few weeks when the G20 meets to sort out the financial crisis and discuss America's lending requirements.

This cannot simply be fobbed off as a "PR disaster". America actions in making these deliberate choices has given licence to every despot in the world to do exactly the same thing (and no doubt much worse) under the mantra of "fighting terrorism". Americas decision to treat "Enemy Combatants" this way is thus a human rights disaster for oppressed people everywhere.

The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.

[Schmedlap]

The short answer to your question is that one of those unequivocal, unalienable rights is due process.

No. Due Process is not an unalienable right. It is a procedural safeguard - a legal construct.

It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile.

I think that you've got a good point, if you're talking about the public relations impact of the perception that we torture people. We did a horrible job of not getting out in front of that issue. But, to be fair, many in our own country were more concerned with scoring political points against the President than in being rational and considering the impacts of their demonizations and mischaracterizations upon the non-US audience.

The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.

The answer is that it's a bogus question. Our gov't waterboarded 3 people about 7 years ago in response to fears of a possible ticking timebomb scenario, held detainees captured on the field of battle without a trial, and some Soldiers acting in a criminally negligent manner mistreated Iraqi prisoners, documented it, and were put on trial and convicted. In its zeal to hammer away at the Bush administration, the media turned Abu Ghraib into the most successful propaganda windfall of the post-9/11 era.

We are not without sin. But we're also not the bogeymen that we were portrayed to be by the party and ideology that were not in power from 2002 to 2008. The propaganda windfall for our adversaries would not have been so dramatic had we not supplied them with the material, echoed a similar narrative, and blown the story far out of proportion and given it more credibility, when it deserved none.

[jmm99]

on this thread. Don't let me interrupt - I'm more than willing to watch from the sidelines.

[jmm99]

Yesterday, Judge Walton held a 2-hour hearing on the DoJ's new definitions for AQ-Taliban detainees, and the detainees' responses to the same. Lyle Denniston has provided a good summary of the key points made by the judge and by counsel.

First test of Obama detention doctrine
Monday, March 23rd, 2009 11:07 pm | Lyle Denniston

Analysis

The Obama Administration’s newly crafted claim of government power to detain terrorism suspects underwent its first courtroom test on Monday, and appeared likely to get at least qualified endorsement by at least one judge. A two-hour hearing in U.S. District Court focused mainly on what Congress meant nearly eight years ago in its first response to the 9/11 terrorist attacks, and on what the Supreme Court meant in 2004 in its first ruling in a modern detention case (Hamdi v. Rumsfeld).

Despite a sharply worded attack by two lawyers for detainees, U.S. District Judge Reggie B. Walton displayed skepticsm that the Administration’s doctrine went as far as the lawyers’ criticism had suggested. He told one attorney that the position being taken by detainees’ counsel would “put our nation at risk; you want the United States to fight Al-Qaeda with its hands tied behind its back.” ....

Unfortunately, I have no link to the complete 2-hour transcript.

Bios for Judge Reggie B. Walton are here and here.

[davidbfpo]

An interesting commentary by the former CIA Director and Congressional veteran, especially the impact on those in the "firing line" in the agencies: http://www.washingtonpost.com/wp-dyn...042403339.html

davidbfpo

[jmm99]

will love this one - as well as the CIA docs and other docs released and to be released (or leaked). There will be little rationality in the process which will ensue.

[jmm99]

for the update. Often when SCOTUS re-hears a decision, the result is a reversal of the decision. But, not always. So, I'll be patient and wait to see what your judges decide.

[davidbfpo]

There is a seperate thread on US attempts to get others to accept those released, but it has meandered off the original topic: http://council.smallwarsjournal.com/...ead.php?t=7191

So I've added a cross reference on that thread and this update here: http://www.telegraph.co.uk/news/worl...o-inmates.html

One wonders what the 'price' exacted by Saudi Arabia is?

davidbfpo

[Ken White]

why are they illegal anything?

Dunno; their choice and I long ago stopped trying to figure motives in people...

If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.

Only if you had a particularly poor batch of US Troops find you; most exercise some discrimination and if they err, tend to err on giving your story the benefit of the doubt. That is to say far more bad guys talk their way out of a bad spot then are wrongly caught.

If I declare Ken a non combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.

Well, you could, I guess but I don't know why you'd lock up a non combatant; we try to avoid that, mostly successfully and concentrate on locking up combatants -- the issue du jour being whether they are 'illegal' or legal combatants.

That involves the Geneva Convention and those provisions that state aside from combatants (pictured as military force against military force; out of date but there it is), other individuals, including civilians, who commit hostile acts and are captured do not have the protections of the GC. Rightly or wrongly, the US decided to label people in that category 'illegal combatants.' Gives the Lawyers something to do...

[Tacitus]

If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.

I’ll take a crack at this one. If grabbed as a suspected terrorist by US troops, I don’t know who decides you go to Gitmo. Or how it is decided. But, it seems possible, if whoever thinks you belong there has the power to make it happen. The accusation or suspicion or terrorism, itself, provides sufficient justification for you to be held there.

Once you get your orange jumpsuit, you’ll have plenty of time to ruminate. Martin Luther King, Henry David Thoreau, and Adolf Hitler all decided to write about their circumstances while behind bars. I don’t know if you’d be allowed that privilege, or not. I haven’t noticed any jailhouse manifestos from Gitmo in my local bookstore, yet.

Tacitus' opinions don't carry much weight, of course. Of more importance on this issue, let's hear what Senators Obama and McCain think about this.
http://www.cfr.org/publication/14751...008%2Ftrackers
Both of these gentlemen have several times said they plan to shut this thing down, Obama suggesting trying the accused in a U.S. criminal court or by a military court-martial. I think McCain has suggested just moving this thing to Fort Leavenworth, and using what is already in place there.

Since your case is unlikely to be resolved before Inauguration Day (January 20, 2009), there’s a fair chance you’ll have your day in court somewhere else.

I wouldn't take any false comfort from that, though. They probably wouldn't have grabbed you for nothing, and might could get you on a charge of spying for terrorists, if not being one, yourself. The last British spy that I remember us dealing with was Major John Andre. He was denied a soldier’s death by firing squad, and instead hung. And he wasn’t even Al Qaeda.
http://en.wikipedia.org/wiki/John_Andr%C3%A9

[JJackson]

They probably wouldn't have grabbed you for nothing

This is the part of the process that bothers me.
I have never been in a situation like this but assume it is fairly chaotic. Some of the insurgents will be local, some from further afield and if the engagement is in a town or village will include a whole spectrum from completely uninvolved through sympathisers, non combatant supporters, lookouts, fighters and their commanders. I assume they all get rounded up and all claim innocence then what? How many were just in the wrong place at the wrong time and if they are not going to get a hearing then how can they escape the nightmare? This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
In the UK we had a whole spate of IRA miscarriages of justice releases and apologies for fabricated evidence against individuals who the police 'knew' were guilty but could not provide evidence. With the public baying for blood and their superiors for convictions, they just helped the cases along. This is very understandable given the circumstances at the time, but also very wrong.
As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.