Gitmo and the lawyers!

[selil]

Sorry Jedburgh I haven't read the entire report, but just from what you posted the conditions at Guantanomo would not meet US prison or jail standards. The only places that 22 hour lock down or special confinement is allowed for prolonged periods of time are at SuperMax in Canon City Colorado and the various Special Offender Centers. Each has their own methods of dealing with it. Inmate violence on the outside is NOT a concern unless the inmate has made specific and relevant threats upon incarceration. Most state and national standards also require judicial review at some point for that kind of lock down on pre-trial detainees. Most people have little to no understanding that what happens on the outside of a prison compound has little relevance on the inside. Both for the good and the bad. Unless you've worked in SuperMax or SOCs it is doubtful many people can understand the special breed of insanity that lock down breeds. This kind of lock down takes special training for the corrections personnel. Insanity inside a prison is literally infectious. I hope they are 3-4ing, or rapid rotating personnel.

[Jedburgh]

IHT, 2 Jul 08: China Inspired Interrogations at Guantánamo

The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of "coercive management techniques" for possible use on prisoners, including "sleep deprivation," "prolonged constraint," and "exposure."

What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners.

The recycled chart is the latest and most vivid evidence of the way Communist interrogation methods that the United States long described as torture became the basis for interrogations both by the military at the base at Guantánamo Bay, Cuba, and by the Central Intelligence Agency.....

I take odds with the author's statement that the SERE program became a source of interrogation methods for the Army. I will caveat that by stating that I did have issues in the past with interrogators who had spent time working out at the RTL needing strong mentorship and focused training to ensure that the line remained stark and clear between methods used with those going through the RTL and methods that we use with prisoners and detainees. It would not surprise me that a former RTL interrogator had used such methods operationally - but that occurence is ultimately a leadership failure at the unit level. The article's implication that the Army - as an institution - adopted such methods is patently false.

Here's the '57 study referred to in the article:

Communist Attempts to Elicit False Confessions from Air Force Prisoners of War

....As a social scientist, I find of singular interest one result of the studies which we and other groups have recently made of Communist attempts to extort "confessions". It is that the finding of our studies whlich should be greeted as most ne-w and spectacular is the finding that essentially there was nothing new or spectacular about the events we studied. \We found, as did other studies such as those of Hinkle and Wolff that human behavior could be manipulated within a certain range by controlled environments. We found that the Chinese Communists used methods of coercing behavior from our men in their hands which Communists of other countries had employed for decades and Which police and inquisitors had employed for centuries. The Chinese interrogators succeeded or failed to influence the behavior of their victims roughly to the extent that the skill and persistence of the personnel they employed nmatched those of practitioners in other places and times.....

[Jedburgh]

CSIS, 15 Sep 08: Closing Guantánamo: From Bumper Sticker to Blueprint

George W. Bush, Barack Obama, and John McCain all agree that the United States ought to close Guantánamo. But how can we expand a position that has been little more than a bumper sticker—"Close Guantánamo!"—and turn it into a blueprint for real policy change? This report outlines an answer to this question.It will likely fall to the next administration to carry out this new policy. The challenges are considerable, and there is no "silver bullet." In fact, there are only imperfect options. That said, Sarah Mendelson and the CSIS Working Group on Guantánamo and Detention Policy have concluded that the costs of keeping Guantánamo open far outweigh the costs of closing it. They recommend that the process of closing Guantánamo should be achieved through a policy called R2T2:

- Review
- Release/Transfer
- Try

During his first week in office, the next president should announce the date for closure of Guantánamo as a detention facility in conjunction with announcing the establishment of a new policy. Implementation of this new policy would be charged to a blue-ribbon panel of eminent Americans tasked to review the files on all remaining Guantánamo detainees. The duties of the panel would include categorizing all detainees to be released or transferred to the custody of another government or, alternatively, to be held for prosecution in the U.S. criminal justice system, whose record in international terrorism cases far outshines that of the Guantánamo military commissions. Since 2001, the U.S. criminal justice system has convicted 145 terrorist suspects, whereas the military commissions, thus far, have only convicted two. Overall, this straightforward policy—R2T2 —can help restore our reputation as a country that is built on and embraces the rule of law.

Complete 31-page paper at the link.

[jmm99]

from CSIS
They recommend that the process of closing Guantánamo should be achieved through a policy called R2T2 ... Review ... Release ... Transfer ... Try.
...
Implementation of this new policy would be charged to a blue-ribbon panel of eminent Americans tasked to review the files on all remaining Guantánamo detainees. ...

Got news for CSIS - we already have "a blue-ribbon panel of eminent Americans" working on the problem. We call them the Federal judges of the DC District and DC Circuit.

And, unlike a "Gitmo Commission", the present "blue-ribbon panels" have the authority to order compliance with their policy of "R2T2" - including putting offenders into the prisons of their choice.

PS: The next president should simply order DoJ and DoD to get with it and clean up these cases. We are dealing with roughly 400 cases at issue - not a large number.

[davidbfpo]

Amongst our recent news was the report that the USA, as part of the close Guantanamo Bay, sought the help of Australia and the UK, to absorb some of those released. Sensible to a degree if nationals or past residents; none were. Australia declined and so had Tony Blair when PM. Gordon Brown's view was unclear.

So I like some of the thoughts here, send the detainees back to where they were detained, which I understood to be mainly Afghanistan.

davidbfpo

[Ken White]

So I like some of the thoughts here, send the detainees back to where they were detained, which I understood to be mainly Afghanistan.

never have been removed.

However, they were. No sense crying about it, it's done. Now we're stuck with people who cannot be tried for violation of US Law because making war against any nation outside that nation is not illegal. We could just release them -- and will release many who have IMO been held pretty much by, for and as Schmedlap says -- and as cover for those who should not be released because they are a threat and a significant one at that. They're prisoners of war in a new kind of war the Geneva Conventions -- and most nation's laws -- do not consider.

So we release Ali and he goes back to irregular warfare. So what, you say?

So he kills one American who happens to be one's nephew... Or one German who happens to be a diplomat and thus antagonizes the Germans. Contemplate what the effect would be were he to be far more effective and pull off a real coup of an operation...

We'd be roundly excoriated for releasing him.

Regardless, there is no easy solution; even the NYT admits that (LINK). They're going to be held somewhere without a trial for a while...

[Ken White]

Check this Reuter's article (LINK).

[jmm99]

The Obama administration will find this a harder nut to crack than can be done by a generalized EO which will sound good in principle. The problem will come in reducing the principle - "Close Gitmo !!!" - to practice.

Closing Gitmo will not solve the problem - nor sending them "somewhere". As to that, sending them back to Astan and Bagram is as good a temporary solution as any. Temporary - cuz that is the next dinner plate coming up the dumb waiter, as I reported here, at posts ## 161 & 163.

Two separate questions concern these detainees; and the others who will surely come into our hands in the future.

1. Their status under the GCs as ratified by the US. The Federal courts who have looked at this question have generally found (across the spectrum) that Common Article 3 of the GCs determines their status. In short, the Taliban, AQ and associated detainees are not PW/POWs under GC III, or civilians under GC IV. The arguments hinge on what treatment should be given detainees with this CA 3 status - and how long the detention can last.[*]

2. Criminal charges against those detainees under US law. First off, the statement that "making war against any nation outside that nation is not illegal" is simply not correct. It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

Here, we again have two kinds of possible criminal charges.

2a. Criminal charges against detainee armed combatants who have Common Article 3 status - that is, armed combatants of a non-state actor (even if a "Power" in the armed conflict) which has not accepted and applied the GCs in its treatment of detainees, etc. In the olden days, they could be tried by a summary military board of field officers and even executed. CA 3 simply requires that they be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

2b. Criminal charges based on US Anti-Terrorist, Anti-Torture and War Crimes statutes. Those charges have nothing to do with Common Article 3 status, but hinge on whether the crime is committed by or against a US national.

Admittedly, the Bush administration has made a hash of explaining all this to the public - and, for that matter, in trying some of those cases competently. I await the practical solutions to be adopted by the Obama administrtation - a wait of 6 months to a year before we see a "field manual" would not surprise me.

At that point in time, some Bush Bashers will undoubtedly support the Obama "manual" - even if it resembles the Bush "manual" in all material respects. Ain't partisan politics wonderful ?

-------------------------
[*] Some arguments have been made that the 1977 Additional Protocals I and II should be applied to CA 3 situations. Those were adopted by many countries in the heat of "surges" for anti-colonialism and wars of national liberation. The US did not ratify those protocals - nor were they ratified by India, Pakistan, Afghanistan, Iran and Iraq - which cover the present areas of interest.

PS: As I finished this, a Cheney bashing segment on this topic came on. The two media pundits either know nothing about the GCs and US criminal law; or, are simply mendacious.

[Ken White]

...First off, the statement that "making war against any nation outside that nation is not illegal" is simply not correct. It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

Can you cite the statute from any nation that makes the actions of a foreign combatant who does abide by the 'laws' of war (I'd say there are none other than those each nation passes to govern its own conduct but we can save that argument for another time) criminal if said war is on the individuals own or another nations territory?

2a. Criminal charges against detainee armed combatants who have Common Article 3 status...

2b. Criminal charges based on US Anti-Terrorist, Anti-Torture and War Crimes statutes. Those charges have nothing to do with Common Article 3 status, but hinge on whether the crime is committed by or against a US national.

If neither of those apply and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?

Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged?

Seems to me that the statement ""making war against any nation outside that nation is not illegal"" is not so much incorrect as it just offends the lawyerly sensibilities...

...I await the practical solutions to be adopted by the Obama administrtation - a wait of 6 months to a year before we see a "field manual" would not surprise me.

Heh. A wait of over eight years on this score will not surprise me...

[*] Some arguments have been made that the 1977 Additional Protocals I and II should be applied to CA 3 situations. Those were adopted by many countries in the heat of "surges" for anti-colonialism and wars of national liberation. The US did not ratify those protocals - nor were they ratified by India, Pakistan, Afghanistan, Iran and Iraq - which cover the present areas of interest.

As we both know, they don't apply and the issue of unlawful combatants in accordance with the Third Convention is not a settled fact regardless of the ICY for the Former Yugoslavia decision based on the 1958 commentaries...

[jmm99]

.... making war against any nation outside that nation is not illegal.

does not offend my "lawyerly sensibilities" - nor any other of my sensibilities (assuming I have any).

My objection is that it is overbroad; and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).

You recognize that distinction when you ask for a statute that makes criminal "the actions of a foreign combatant who does abide by the laws of war". Obviously, there is no such statute or convention because that statement is the same in substance as what I said:

It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

The defining "statute" is Common Article 2 of the GCs which makes the conventions applicable to the High Signatory Parties involved in an armed conflict (somewhat broader in scope than a war under Hague); but also to a "Power" involved in that armed conflict - if that "Power" accepts and applies the conventions (e.g., North and South Korea during the Korean War, although practice did not always conform to principle). If that is the case, that Power's armed combatants are lawful and fall into GC III (as PW/POWs) and its civilian adherents into GC IV (as protected civilians).

Now, what of a Power to an armed conflict that does not accept and apply the GCs to its own military actions and its own detainees - even in the minimalist view that the GCs must only be applied (giving an implied acceptance) ? Very simply, its armed combatants are not lawful combatants to which the PW/POW provisions of GC III apply. That is so even if an individual armed combatant of that non-complying Power himself otherwise complies with the "laws of wars" as we understand them.

And, its civilian adherents are not entitled to the protected civilian provisions of GC IV. That is the price that one pays for adherence to a Power that does not apply the GCs. So, do these combatants and civilians have any rights ?

The answer is affirmative - under Common Article 3 of all the GCs, which applies to any non-state actor ("Power") which does not apply the GCs.

Those provisions, which recognize detention of both combatant and civilian adherents of a non-complying Power, require a trial before a competent tribunal before execution, etc. Similar provisions are in the main body of GC III (if a CA 3 detainee claims PW/POW status) and GC IV (if a CA 3 detainee claims protected civilian status). The last two claims are what the DC habeas cases are all about.

We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). Gary Berntsen feels they should be charged and executed if convicted - for which, there are some older precedents under the "common law of war" ("We shoot partisans, don't we ?"). I happen to disagree cuz I don't like "common law crimes".

What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.

-------------------------------
As to your questions:

If neither of those apply [no criminal charges and not an armed combatant] and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?

The only valid reason for detention would be the civilian's adherence to the non-complying Power (e.g., to AQ). The DoJ claimed this as to the Uighurs and got smacked on the facts. I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.

Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged ?

Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.

Were you thinking back to your mispent youth as an advisor ? Again, practice did not accord with theory - (e.g., Dan Pitzer, Nick Rowe and Rocky Versace - not a hypothetical).

You keep me up too late.

[Ken White]

My objection is that it is overbroad...

Penalty of being old...

and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).

Always a possibility and I have little doubt that a few have so hidden in most wars but on balance, most get caught at it or killed. It all works out.

... Obviously, there is no such statute or convention because that statement is the same in substance as what I said:

Huh. That's funny -- I thought that's what I said -- that what you said was what I said. More or less...

We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). ... I happen to disagree cuz I don't like "common law crimes".

What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.

I agree with you and not Berntsen or the apologists...

...The DoJ claimed this as to the Uighurs and got smacked on the facts.

Dumb cliam by DoJ.

I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.

That's what I thought and the issue then becomes that he got picked up as a possible fighter -- wrong place at the wrong time -- and it could be exceedingly difficult to prove he was NOT a civilian entitled to GC IV. So either you determine he is such and let him go or you're sure that he was in fact a fighter but you may not be able to prove that so you just hang onto him -- particularly if you think he might return to his old ways...

Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.

Do I exclude it or can I just not -- or don't wanta -- prove it???

[wm]

A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.

This is the lead sentence from a story here.

So, could one option be to release all the detainees because the control of evidence has been so botched that the possibility of fair trial no longer exists? The US then just brings all the detainees back to where they were first detained and releases them.

(An interesting twist on the old "catch and release" program:
Announcer: Well, detainees, thank you for playing "Lock Up the Terrorist." Johnny, please tell the contestants, our studio audience, and the folks at home, about the lovely parting gifts we have for them. )

[jmm99]

The WP article is here. This case and other cases with much the same problems have been posted in "War Crimes". I'll try to get back to this later this afternoon or tonite - and see if I can link to the original declaration.

[jmm99]

The WP article, and another Gitmo article here (with a slant), deal with the Jawad and Khadr cases - both involving alleged grenade tossers.

Posts on the Jawad case are here (#63), and here (##121 & 124).

Posts on the Khadr case are here (#62), and here (#147)

Since this thread is about lawyers and Gitmo, we may as well start with some of the lawyers. The first thing we have is a tom cat p...ssing match between LTC (ret) Darrel Vandeveld and COL Lawrence Morris. That may or may not have anything to do with the merits. One thing sure - those two are not about to agree on anything.

We also have MAJ David Frakt (defense for Jawad) who has elected to try the case in the media. That is his right - since he is not under a gag order. I wouldn't chose to do that, but that is a matter of taste, not ethics. Watched the MAJ on TV last nite and was not that impressed (purely IMO).

The only lawyer I personally know who is involved in one of the Gitmo cases is Mike Cooper, pro bono defense for one Adel El Ouerghi, an alleged "Tora Bora boy" with some Tunisian problems. Mike is older than I and younger than Ken.

Mike has chosen the quiet approach (via diplomacy through DoS Legal Advisor's Office) to find a new home for his client. Mike's suggestion to the court is here. No merits decision yet that I could find. If diplomacy doesn't work, then Mike has reserved the habeas route.

----------------------------
These two grenade cases (like many others) involve two separate issues:

1. Whether and how long the detainees should be detained, which is a CA 3 question.

2. Whether the detainees are guilty of criminal charges (murder and attempted murder), which is a Federal statutory question.

The media mixes these two issues with reckless abandon - and so do defense counsel since the criminal charges require a higher standard of proof and the evidence (that which exists) is weaker.

The problem of missing and undisclosed evidence is a valid gripe (IMO), which has been discussed in a number of "War Crimes" posts.

------------------------------------
Sending them all back to Bagram - and starting from square one - has some merit. Release for all - no; release for those against whom there is no probable cause to find them armed combatants or AQ adherents - yes.

Only problem with that is that the DC District has hold orders on all of the habeas detainees - limited to Gitmo. The Federal judges will eventually (within this year) decide which detainees should be held and which should be released. Those hearings are solely on the lawfulness of detention, not what crimes may or may not have been committed.

That process will continue unless DoJ decides to fold on all of the cases. If these decisions pile up, the Obama administration may simply decide to let the Federal judges decide the detention issue.

[jmm99]

in the El Gharani case, which is here (post #165), illustrates many points raised in prior posts above.

If the other Federal judges would move with his diligence over the next 6 months, these Gitmo cases could be cleaned as to the issue of detention.

That would still leave the questions of where and how long to detain - as well as the question of what crimes (if any) should be charged against those whose detentions are found valid. Those questions must be addressed by the Obama administration in specific terms.

[J Wolfsberger]

Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?

Second question concerns potential trial rules. Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?

I'm also confused about just exactly what has gone on. These people were captured on the battlefield. They went through the tribunals, I thought, to determine a. whether they were engaged in acts of war and b. whether they were "protected persons" as defined by the GC. If the answers were no or yes, I thought they were released. I also thought that if there was too much uncertainty, they were released, which led to our guys meeting some of them on the field of battle again. Did I miss, or misunderstand, something? Haven't we been following the GC by determining their status? Aren't the people still in Gitmo the ones who were determined a. to have been engaged in acts of war and b. to be unprotected persons under the definitions of the GC?

[Ken White]

At least, I don't think they are. I'd be willing to bet a bunch of money that the first 'hypothetical' has occurred, is occurring and will continue to do so due to the "catch and release" policies. Joe is not stupid...

Policy makers sometimes let their idealism or urge to please get in the way of their common sense.

For the second, I don't doubt it'll get that bad in some courts.

For the last, mostly true, I think but there are a few of questionable status who are the cause a lot of friction due to trials by media, adverse publicity and / or some curious actions by DoJ -- most caused, I'm sure by some Intel Agency worried about releasing too much info in an Unclas forum.

However, I think I totally understand your logic and agree...

[jmm99]

[3] I'm also confused about just exactly what has gone on. ...

I'll keep this short. The basic problem was that CSRT review was flawed (not so much as it was written, but in how it was run and staffed). The net result was that no one had any confidence that all the bad guys were really bad guys. That was exemplified in the two completed MCA trials, where the military judges re-determined (before the merits hearings) the detainee's status as an "enemy combatant" ("unlawful combatant"). It also has been proved by the 6-3 release score in the habeas cases decided by Judge Leon (not a liberal by any test).

The simple issue of a detainee's status (EC or not) is not rocket science, since it is really a question of whether there is probable cause (50% + a nose) to hold. That question is decided by Federal and state magistrates (lower level judges) in 100s of cases every day. Ken hits on part of the problem (secrecy) which was as much DoD and Bush WH policies as intel. As the Federal court cases prove, classified information is not a valid issue. It has been handled without problems to the US in many detainee cases.

In any event, the DoJ (not the detainees and not the courts) took the initiative to scrap the CSRT process - and the DC Circuit in Bismullah agreed with DoJ, as reported here (#164). So, EC status will have to be re-determined in each of the habeas cases - as Judge Leon is doing.

--------------------------

[2] ... Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?

As to Miranda - definite "No release" under present MCA rules. If torture (defined in MCA) or "totality of circumstances" proves the unreliability of a statement, the statement must be excluded. But, that does not release the detainee if other evidence proves EC status. See how Judge Leon (link in #35 above) went through the charges and evidence item by item. He was more than willing to remand the detainee to custody if the DoJ could win on only one item. It couldn't make a preponderence on any item.

What I'm seeing in these cases, is that the field investigations were fine. The problems have been loss of evidence (e.g., chain of custody) which was properly collected by troops in the field; and the failure to follow up the leads suggested in that evidence. Those failures were DoD and DoJ failures (in part caused by transfer of detainees and evidence between commands and agencies). IMO that is the main reason for secrecy in these cases - call it CYA. In this area, our troops can walk and chew gum at the same time (without added cops, lawyers and public defenders). The same can't be said for DoD and DoJ.

------------------------------

[1] Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?

IMO (not a legal analysis) -

The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.

Here is one view from MAJ "Fury". Context: Some AQ surrendered at Tota Bora. A group of them, escorted by Ali's muhj, ran into MSS Grinch (a composite Delta-SBS force of about two dozen).

Upon seeing the American commandos, the muhj became nervous, clearly not wanting the boys near their prisoners. A rumor had spread after the laughable surrender deal a few days earlier that the Americans would kill all prisoners in cold blood. In a war zone, that wasn't necessarily a bad reputation to have.

The "Grinch boys" and their attached Arab linguist did get near the AQ prisoners and engaged in a brief photo op and debriefing, including one AQ who responded to a question about UBL by saying: "I could tell any Muslim brother where Sheik Usama is; and they wouldn't tell you."

Every nervous muhj guard present during this exchange thought the next action would be an American commando putting a .45-caliber hard ball into the prisoner's smart-ass mouth. But we are more civilized than our terrorist adversaries, a characteristic seen as a sign of weakness by al Qaeda's ilk, and let them live. In a war zone with these people, such compassion isn't such a good reputation to have.

Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (a good book for JAG officers to consider in advising go and no-go).

I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.

The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).

[Ken White]

...IMO (not a legal analysis) -

The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.

I believe that (1) would be precluded by the commands; (2) Is highly unlikely. Most Americans do not go in for torture, mutiliation or unnecessary wounding; to be sure, some do but they're a minority (3) but most will kill someone in a heartbeat -- and what the commanders says or wants may or may not have an impact; most firefights are not very well organized...

Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (a good book for JAG officers to consider in advising go and no-go).

I disagree. Fiction is not a good guide for lawyers...

I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.

I do not disagree with you on "a law of war" but would remind you that Ali or Joe do not always heed the laws or their bosses; sometimes they think for themselves and do what makes sense to them. Americans in particular are very much into independent action and making decisions. They also tend to be selfish and to dislike excessive or unnecessary work, so catching the same guy three times in three months doesn't seem to them to be really smart...

The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).

I'm unsure what you mean by targeted killings. if you mean the attacking with direct action groups -- or Hellfires from predators -- of so-called 'high value targets' or the leaders of insurgent or opposition groups, I suspect you'll be disappointed. That's a technique that's as old as warfare and it works...

[jmm99]

... (1) would be precluded by the commands

What commands ? The context of JW's example suggested a group of good guys acting independently in fact - thus, no assumption of "legalisms" or ROEs for that matter. So, good guys decide what to do individually or do what their commander tells them. Aside from capture (detention), accepting surrender and leave in place is another (lots of variations here if you have an imagination - which you do).

(2) Is highly unlikely. Most Americans do not go in for torture, mutiliation or unnecessary wounding; to be sure, some do but they're a minority

I see - OK to kill them (#3), but not disable them (BTW a necessary wounding assuming your team cannot detain prisoners). More humane to kill than to maim. Perhaps true to a majority of Americans.

(3) but most will kill someone in a heartbeat -- and what the commanders says or wants may or may not have an impact; most firefights are not very well organized...

Nope, won't let you cop out so easily - BTW: agreed that there is a lot of slack in a firefight & so, a surrender is a risky proposition until the situation becomes stable. I'm assuming a stable situation after the firefight, where the choice has to be premeditated and deliberate.

Hell, let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.

I don't think that situation is that simple - and probably has no correct answer. However, your move ...

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I disagree. Fiction is not a good guide for lawyers...

What is your factual basis for the assertion that the book is fiction. Since I'm a Dalton Fury neutral, I stand to be educated by facts. If the man is "not factually accurate" (he says the book is fact), I'd like to hear the facts.

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I do not disagree with you on "a law of war" but ....

We agree here - and that is what I am getting at by actual reciprocity. I would add that our troopers see even less reciprocity where American detainees in AQ hands are beheaded, mutilated, etc. The problem of AQ retreads is a smaller subset of a much larger problem caused by AQ-Taliban non-compliance with the GCs. Where there is a substantial disconnect between the law and those subject to the law, the law will fail.

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Yup, I do

mean the attacking with direct action groups -- or Hellfires from predators -- of so-called 'high value targets' or the leaders of insurgent or opposition groups

My disappointment will be if the "new rules" outlaw those tactics. AQ has no qualms about killing our leaders - and destroying our government. Actual reciprocity in this instance supports continuation of the tactics.

Trying to figure why you read me wrong. I think it is because some people do argue that we should not kill their leaders because, if we don't do that, they won't kill our leaders. Now, if that theory worked in practice, there would also be actual reciprocity. I will start believing those apologists when beheadings, suicide bombings and a number of other things end.