Crimes, War Crimes and the War on Terror

[Ken White]

the Lawyers totally blew it in an effort to outsmart themselves. Use of 'PW' instead of 'detainee' and keeping them in the nation where picked up -- or in Afghanistan for those from Pakistan or elsewhere -- would've been the simple solution and far better PR (and, no Lawyer but IMO, legal) decision. All that detainee foolishness and the arch stupidity that was and is Gitmo couldn't have been much worse if the bad guys were the planners.

Hmmm...

On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.' The world is absolutely determined not to see that and to deny it if it appears that way; been that way all my adult life and it's really not much worse now than it has been since about 1947 or so; we just communicate far more widely and rapidly today so it seems worse. Not as bad now as it was during Viet Nam.

So on the PR front (since the late 40s) as well as the international terrorism front (since 1972) we refuse to adapt to reality; "It must be done as we wish it done." Get over it, Washington, not going to happen...

NOTE: This was addressed to Shmedlap's post; Marc beat me

[marct]

Hi Ken,

On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

Too true! Isn't there a Biblical saying about "the meek shall inherit the Earth - a 6" x 6' x 3' plot"?

On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

[Ken White]

...On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic )

I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

[wm]

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...
I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to. Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact. If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

[Ken White]

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to.

Agreed and that was a large part of my point in the comment. I believe Churdhill had it right when he said "You can always rely on the Americans to do the right thing -- after they have tried every conceivable alternative." We do generally try but our governmental system is conducive to false starts and that is exacerbated by the bureaucracy -- and too often enhanced by stupidity in high places...

Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

Perhaps, however my less benign take is that the lawyers screwed the pooch in the process.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact.

That too is possible but I'm strongly inclined to believe that it's simply the aforementioned Churchill syndrome in action. As they say, never ascribe to evil what is due to stupidity.

If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

Those types of apologia always appear after every traumatic event; self justification is strong instinct...

I'd submit that in the case of the two you cite, the former is indicative of the fact that those, like Bush (and a lot of Generals), who want 'people they know and trust' in positions of power are the progenitors of the Peter Principle and that the latter author is added proof of that, due to Cheney doing the same thing, as well with the fillip of a massive ego in government not being an asset.

We do the right thing far more often that not and that is a good thing. Generally when we do not do so it's due to a person; a squeaking wheel, in the wrong place at the wrong time who takes deliberate or inadvertent advantage of the governmental system and the bureaucracy to effect an action that he or she believes to be required. Usually, the system catches that, albeit slowly, then corrects itself.

Unfortunately, due again to the system, the correction is frequently an over correction, thus we seem to lurch about like a drunk from one extreme to the other before finally getting it right. It confuses the daylights out of the rest of the world who prefer to take it slow and easy and do not recognize that we are taking it slow -- just not easy. It's not the American way.

The annoying thing to me is that has been a feature (or a bug?) in our government for a great many years. Seems to me that a workaround for that should be developed. It could be easily done -- except for the fact that each new Administration will reject anything that has gone before and try to do it their way. That is just ego driven stupidity.

I can hardly wait until this time next year...

[marct]

Hi Ken,

True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.

This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now. Staes are free to decide on what constitutes a "uniform", and I would argue that the Taliban, which whether we like it or not did form a state that was recognized by a few other countries and the UN, is free to choose what it is. I would argue that legally they are in the same position as a "government in exile". As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument .

What's ridiculous; the US position or the GC failure to protect illegal combatants?

Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.

True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy...

The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

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.

[Ken White]

This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now.

Agreed but unfortunately, the GC is not designed to cope with today's modified realities so the Lawyers get to play.

...As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument .

I agree. 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.

Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.

Disagree on the former, agree on the latter -- I did however note that the Lawyers did not do the former at all well...

The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.

That might be possible though my suspicion is that any attempt to do that will be fought tooth and nail by the HR community.

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.

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.

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.

[Tacitus]

The question is why are we bothering with holding trials (perhaps instead of summary execution) for people we just know are guilty of something.

Q: What do the following men all have in common?
Martin Bormann, Karl Donitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Hermann Goring, Rudolph Hess, Alfred Jodl, Ernst Kaltenbrunner, Gustav Krupp von Bohlen und Halbach, Robert Ley, Baron Konstantin von Neurath, Franz von Papen, Erich Raeder, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Dr. Hjalmar Schacht, Baldur von Schirach, Arthur Seyss-Inquart, Albert Speer, and Julius Streicher.

A: They were all accused of various war crimes and given trials at Nuremburg.

Not in some kangaroo court in an offshore Cuban penal colony, either. Evidence was presented, and they were given the opportunity to defend themselves against charges. It is because we are Americans. We have a suspicion against arbitrary arrests and imprisonment by either George III (or some possible home grown despot), dating back to the American Revolution.

Interestingly, von Papen and Schacht were acquitted.

I believe most people think that if you are holding somebody as a war criminal or terrorist kingpin, we have some kind of obligation to bring evidence in something like a fair public trial environment. Federal Court or some kind of Nuremberg style military tribunal will do. As it is, the perception is that we are running some kind of Star Chamber.

If we’re dealing with some guy who just happened to be in a Taliban militia, this all seems a bit overkill. What is the problem with just treating him as a POW or turning him over to the Afghan government, anyway, instead of trying to reinvent the legal wheel?

[J Wolfsberger]

From the Third Geneva Convention:

"Part I. General Provisions

"Art.4 Prisoners of War ...

"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

and

"Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Illegal combatant" and "unlawful combatant" don't appear in the conventions. What people are trying to get at with the terms is whether an individual is protected by the conventions. The US has, in fact, provided "the protection of the present Convention" to the detainees at Gitmo. The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

[wm]

the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic )