Matthew Yglesias (April 10, 2008) - War Crimes (Foreign Policy)

Luckily for them, I don't think any of the NSC principals are lusting after Benelux holiday opportunities.

Posted by Matt C | April 10, 2008 9:34 AM

Bush is going to issue pardons en masse for every crime committed during his reign. Far too many people are in jeopardy of millions in legal fees and protracted criminal proceedings if he doesn't do it. I've read in various legal dissections of the matter he's also allowed to pardon himself. January, 2009 should be an interesting month and a very joyous one for many war criminals. And economic criminals, enviromental criminals, Justice Department criminals. Actually for the entire apparatus of the Federal Government considering its conversion to a criminal syndicate since year 2000.

Posted by steve duncan | April 10, 2008 9:36 AM

Wanna bet who will be the first test case? Rumsfeld is too smart to be in a country that might arrest him. So is Cheney. It's easy to see Bush never leaving US soil after '09. Ah but Fredo, yes, Fredo . . . he just may be dumb enough to back himself into a situation where he does end up under arrest.

It's true, isn't it? - that Kissinger is very careful as to where he travels? And, overall and for a variety of reasons, he is less vulnerable than these current thugs. There is clearly more vulnerability here, after next January 20.

Posted by maxgowan | April 10, 2008 9:41 AM

Wow, Matt, it took you all this time to figure that out? For your next trick, maybe you'll figure out why telecom immunity is so desperately important to them.

Posted by Steve LaBonne | April 10, 2008 9:45 AM

Bush is going to issue pardons en masse for every crime committed during his reign

I'm pretty sure presidential pardons wouldn't hold much sway in the Hague.

Posted by right | April 10, 2008 9:46 AM

I'm pretty sure you call the activities described in this ABC News blockbuster "war crimes" and the people who committed them -- "the most senior Bush administration officials . . . members of the National Security Council's Principals Committee" -- are war criminals.

Hahaha. Slapping Khalid Sheikh Mohammed = war crime! Too funny.

Of course, to people like Matthew, even failing to ask "pretty please" is a war crime.

Posted by Al | April 10, 2008 9:48 AM

I'm pretty sure presidential pardons wouldn't hold much sway in the Hague.

Posted by right | April 10, 2008 9:46 AM

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
You have to physically arrest and detain a person to inflict punishment beyond some sort of convoluted monetary gyrations involving overseas holdings and investments. Sure, not traveling puts a crimp in your life and post-administration business interests. Beats rotting in jail. How likely is it any future President or Justice Department will cooperate with the deportation of a former high ranking official to The Hague for trial? Not very.

Posted by steve duncan | April 10, 2008 9:52 AM

What most struck me about the ABC report was Ashcroft opining that history wouldn't look kindly upon them all. It reminded me of when I was helping my daughter with her history homework last year, when she was attending a Portuguese school. She was preparing for the history test on the regime of the dictator Salazar, and unfortunately I was able be give my daughter extensive context on Salazar's crimes against democracy by comparing it to the behavior of the Bush administration. You can read it in "Another History Lesson," at
http://www.mcsweeneys.net/links/philipgraham/25dispatch13.html

Posted by Philip Graham | April 10, 2008 9:54 AM

Hey, Al, you fucking lying monster. The people here are informed enough to know that the ACTUAL war crimes committed by these monsters are of an entirely (and horrifically) different category than "slapping." Try those fucking lies on your inbred cracker family, your sister/wife for example. Only they are likely to be stupid and ill informed enough to believe it.

Posted by LarryM | April 10, 2008 9:56 AM

Hey, let's recap the world according to Matthew.

Slapping Khalid Sheikh Mohammed is a war crime.

Punching Richard Perle is recommended.

I see!

Posted by Al | April 10, 2008 9:59 AM

Though really Al's comment is in its own way revealing. Even a sister fucking monster like him, who loves killing brown people, finds himself incapable of defending what the administration is REALLY doing, so he is reduced to the most transparent form of lying to avoid confronting the horror that this nation has become.

Posted by LarryM | April 10, 2008 9:59 AM

Sad as it is, any these guys facing criminal sanctions anywhere is ultimately unlikely.

On the other hand ... state and federal bars are not under sway of presidential pardons. Actions taken by Yoo, Addington, Gonzales and many of their minions is subject to bar discipline. While 'it's not the same' in many ways, recall that Clinton lost his law license for 5 years (which serves as political cover in any event, fair is fair, if you can lose a license for 5 years for sexual misconduct, surely you can lose a license for 5 years for rendering a transparently results driven opinion supporting torture, yes?).

There are some problems with pursuing disbarment; as a general rule, 'political' actions are immunized. But Yoo and his fellows were acting as lawyers, and that protection does not stretch but so far.

I keep waiting for the first shoe to fall ... all it takes, after all, is a complaint to a bar association to which Mr. Yoo, for example, belongs.

Posted by drinkof | April 10, 2008 10:00 AM

I also expect a mass wave of Presidential pardons, and a strong preference for RVs over international resorts.

Al,

Yep, striking KSM in an effort to coerce information and confessions out of him was a crime under U.S. law--it isn't even a remotely close call. And no, there isn't a "but he was a really bad guy!" exception in U.S. criminal law.

Posted by DTM | April 10, 2008 10:01 AM

Philip,

Your daughter's rebellious period should be an interesting time for you.

Posted by Juan | April 10, 2008 10:01 AM

The people here are informed enough to know that the ACTUAL war crimes committed by these monsters are of an entirely (and horrifically) different category than "slapping."

From the article: "Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding." (emphasis added)

Slapping and pushing are most certainly what we are talking about here. According to Matthew, slapping and pushing are war crimes.

Posted by Al | April 10, 2008 10:11 AM

Philip Graham: A terrific essay. Thanks for sharing that.

Posted by Trevor J | April 10, 2008 10:11 AM

Al, you fucking piece of dog shit,

God you are too fucking stupid to live. You actually manage to post a quote that refutes your own prior posts. No one is saying that slapping is torture (it may be illegal, but it isn't torture). But anyone with half a brain and a degree on honesty agrees that waterboarding is torture. It is also - well, I was going to say that it is several orders of magnitude worse than "slapping," but that actually understates the matter.

Posted by LarryM | April 10, 2008 10:18 AM

Matthew,

It is long past time to ban that lying mother fucking war lover Al. If you don't want to ban him, at least have someone track his IP address and post his real name, address, and telephone number.

Posted by LarryM | April 10, 2008 10:20 AM

I never agree with Al. But LarryM just sucks.

Posted by mark f | April 10, 2008 10:27 AM

I once upon a time thought that Bushite detestation of the International Criminal Court was some kind of principled defense of war crimes and war criminals.

Wow, really? I mean, you're a bright guy--I've been reading you for years. But my FIRST THOUGHT regarding their opposition was that they wish to ensure their own immunity from prosecution. When considering Bush, Cheney, adn their gang, you simply start with the knowledge that their stated reasons are lies, then assume the worst possible personal motives, which then leads you close to the truth which will still end up being somehow worse than you imagined. I've been doing that successfully since 1999.

Posted by Daddy Love | April 10, 2008 10:30 AM

Don't ban Al.

I love it when conservatives defend war crimes. Especially when there is an unambiguous record that takes them all the way to the President.

We need more from Al, not less. He helps to clarify things.

Posted by Otey2 | April 10, 2008 10:31 AM

Please don't feed the trolls; they're not worth your energy.

Of course we will see a wave of presidential pardons by January 19 that will make even our knowing heads spin. We will have a great window into the scope of all the crimes commited.

Too bad we don't hear more references as to why the right dropped "enhanced" interrogation techniques in favor of "harsh." That's because the it was the Gestapo, in 1939, who originally coined this term. (They originally rejected waterboarding before embracing it.) And why can't enough Democrats point out that waterboarding was the favored technique by the KGB, the Khmer Rouge and the Spanish Inquisition? That during WWII, the US averaged about two corps marshalls a week for GIs abusing enemy solders or civilians? (Pardon the spelling errors, I must return to work.)

Posted by maxgowan | April 10, 2008 10:33 AM

mark f,

As, yes, can't let a little incivility ruin this nice pleasant national conversation we are having between the people who want to kill AND torture brown people, and the people who only want to kill them (but perhaps not quite so many of them). After all, at the end of the day, people like Al are our fellow countrymen. We can argue about torture and the like, but, you know, in a friendly way, so that at the end of the day we can all get together and kick back with a few beers.

Fuck civility; "People" like Al need to be treated like the fucking monsters that they are.

Posted by LarryM | April 10, 2008 10:38 AM

Al's just using a cheap rhetorical dodge. Matt says that "the activities described" in the ABC report are war crimes, and, in the same post, says that the participants in those White House discussions "are war criminals."

So Al goes into the report, reads for twenty seconds or so to find the least obnoxious actiivty described (even though farther down--beyond Al's attention span--the report clearly describes both Zubaydah and Muhammad being waterboarded and the White House planning the sessions) and comes back with "Matt says slapping is a war crime."

Sure, it's not supported by the facts and is a flimsy diversion from the core truth here. But that's just vintage Al, isn't it?

Posted by Daddy Love | April 10, 2008 10:40 AM

Robert Powell, if the UN Security Council passed a resolution authorizing members to arrest George Bush in the United States, using force if necessary, would you defend the right of the international community to pursue such an arrest?

Oh right, that would never happen, because George Bush's country has a veto on the Security Council.

But wait: That veto shouldn't count! Conflict of interest!

Still, totally legitimate, your Security Council.

Posted by Anonymous | April 10, 2008 10:41 AM

How ironic that some Repubs are advocating Condi Rice for McCain's VP. Condi, the torture-enabler who emphatically tells the CIA "this is your baby, go do it!" as VP to the man who was tortured for five years in Viet Nam.

Posted by SNM | April 10, 2008 10:44 AM

Sure, it's not supported by the facts

How is it not supported by the facts? Matthew doesn't say "one of the activites in the report" is a war crime, or "some of the activites in the report" are war crimes.

Matthew is perfectly capable of writing "waterboarding is a war crime". He didn't.

Posted by Al | April 10, 2008 10:49 AM

Condi ("We don't want the smoking gun to be a mushroom cloud") Rice. Liar. War criminal. McCain is too smart for that.

Posted by maxgowan | April 10, 2008 10:49 AM

I would support it if, in order to safeguard the lives of Panamanian citizens in the U.S. and to defend democracy and human rights in the US, Panama invades, uses psychological pressure on George Bush and diplomatic pressure on the U.S., and plays loud Latin music on boomboxes day and night outside the White House until Bush finally surrenders.
(Portions courtesy http://en.wikipedia.org/wiki/Invasion_of_panama)

Then try him in the Hague.

Posted by Daddy Love | April 10, 2008 10:52 AM

I would support it if, in order to safeguard the lives of Panamanian citizens in the U.S. and to defend democracy and human rights in the US, Panama invades, uses psychological pressure on George Bush and diplomatic pressure on the U.S., and plays loud Latin music on boomboxes day and night outside the White House until Bush finally surrenders.
(Portions courtesy http://en.wikipedia.org/wiki/Invasion_of_panama)

Then try him in the Hague.

Posted by Daddy Love | April 10, 2008 10:55 AM

It's fun dropping by this hard-left echo chamber from time to time.

The objective journalist proclaiming no "alleged" war crimes, but flat out guilt by accusation on the journo's part. One marvels at the expediency suggested here: No need to have the legal system involved in any of this. Why not just propose summary execution? It's what those great champions of the universal rights of man would do: Khaled Sheik Mohammed and Osama bin Laden.

Posted by MarkG | April 10, 2008 10:55 AM

Hard left? What you have here, aside from the right wing trolls, are people clustered on the slightly less hawkish side of the national hegemonic consensus. Most of the true non-interventionists (which exist on the left, right, and among libertarians) don't comment here, myself excepted.

No one here has proposed summary execution. In fact, most of the weak minding so called "progressives" on this site probably don't favor executions for the war criminals at all. I, on the other hand, DO favor executions of Bush, Cheney, Rice, Rumsfeld, Powell, and a few thousand other war criminals, but only after fair trials.

Posted by LarryM | April 10, 2008 11:01 AM

"Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding."

Once again, waterboarding isn't "simulated" drowning any more than piercing someone with a knife is "simulated" stabbing. Waterboarding is actualy drowning -- there's nothing "simulated" about the fact that the waterboard victim can't breathe, and that if it continues he'll die from lack of oxygen. The article should more accurately have read "subjected to forced drowning, called waterboarding."

Posted by Stefan | April 10, 2008 11:02 AM

I think it is really important not to give sadists like Al an inch on the slapping issue. It may or may not be torture (it depends on exactly what you do), but it is certainly illegal, and a war crime if you do it to someone like KSM.

Posted by DTM | April 10, 2008 11:04 AM

So, Al, are we agreed that waterboarding is a war crime? If so, that's a good days work. We can talk about sleep deprivation, hypothermia and stress positions tomorrow.

Posted by Led | April 10, 2008 11:06 AM

If Bush, Cheney, Rumsfeld, etc were to wind up in a cell in The Hague, I wouldn't ask for anything else for Christmas or my birthday for 5 years.

Prisoners have died due to overly aggressive techniques. The idea that we're merely objecting to keeping people up past their bed times is Limbaugh-talk.

The "guilt-by-association" claim is ludicrous. Bush has asked for legislation to cover his tracks. ("Keep you friends close, but your enemies closer".) If he can get names on legislation then they won't support his trial for war crimes.

I can't believe what 8 years under Bush has done to this country. Midas-in-reverse: everything he touches turns to shit.

Posted by Jeffrey Davis | April 10, 2008 11:11 AM

Al will never argue the issue on the merits. He will just engage in endless, disingeuous micro-parsing of how real and imaginary liberals talk about the issue. He has no opinions, just enemies.

Posted by Ryan | April 10, 2008 11:11 AM

OK, for "will never" substitute "would strongly prefer not to".

I'll add, too, that's Al's ability to micro-parse people's words mysteriously vanishes whenever a Republicans opens his or her mouth.

Posted by Ryan | April 10, 2008 11:19 AM

Led, I think whether waterboarding is a war crime depends on the specifics. I don't think that waterboarding for a short period of time, where there is no actual drwoning occurring and no possibility of physical harm to the subject, is a war crime. My understanding is that describes what the CIA actually did. Waterboarding under other circumstances - where the subject is actually drowning, or for a prolonged period of time, for example, would be different.

(Actually, that's true for all the techniques described - if you slap someone hard enough and long enough, that can be a war crime too. But I don't have any evidence that's what occured with KSM, for example.)

Posted by Al | April 10, 2008 11:19 AM

For the record, I support giving the full process due to any war crime suspects under U.S. statutory and constitutional law.

Because, of course, I actually believe in the rule of law. That is rather the point.

Posted by DTM | April 10, 2008 11:21 AM

What you have here, aside from the right wing trolls, are people clustered on the slightly less hawkish side of the national hegemonic consensus.

Which is why there is something risible about all this outrage. What (the otherwise odious Chomsky) dubbed "Military Humanitarianism" is fine, by golly, but let's not slap anyone. Yes, slapping prisoners is illegal, and waterboarding is certainly torture, and illegal too. It is not, so far as torture goes, that awful, and we are fortunate that it has not yet spread into normal use by American security forces. Give it time, though. But this is how empire works, has always worked. If you share in the hegemonic consensus on American foreign policy, you countenance this and worse necessarily, and crying about a few, frankly deserving (Khalid Sheikh Mohammed, for instance), eggs getting broken is naive and precious. If you don't like getting your hands dirty, I advise you find a different game to play.

Posted by TheOtherCyrus | April 10, 2008 11:22 AM

Prisoners have died due to overly aggressive techniques. The idea that we're merely objecting to keeping people up past their bed times is Limbaugh-talk.

According to the US government's own records, over a hundred prisoners have been "aggressively interrogated" to death, and many of those deaths have been classified as homicides.

Posted by Stefan | April 10, 2008 11:24 AM

There are variants in waterboarding. One involves putting a nylon stocking over the victim's face, and water is then sheeted over the nylon. The stocking becomes impermeable to oxygen due to the water. When the victim tries to breathe, he can't. The harder he struggles to breathe, the more stress he places upon the fine tissue of the lungs. Capillaries burst and cell walls are destroyed. The longer the victim goes without oxygen, the greater the pain and damage to the lungs. The damaged lungs become susceptible to later infection -- the pneumonia bacillus just loves them shredded lungs.

The experience can't be duplicated by stooges. When the questioners settle the victim into place, they don't go about it at the victims preferred pace. The victim is handled roughly and there's not some last-second capacity to take a deep breath to wait things out.

Pain, panic, and hypoxia and not a mark on the body.

Posted by Jeffrey Davis | April 10, 2008 11:24 AM

Picking out and discussing the least offensive torture technique, slapping, obfuscates the serious issue of authorizing and administering torture.

Did you read the Yoo memo and do you understand its purpose and what it authorized? The memo authorized waterboarding, long-time standing, hypothermia, the administration of psychotropic drugs and sleep deprivation in excess of two days in addition to a number of other techniques, including the afore-mentioned, ha, ha, ha, "slapping." These techniques have long been established as torture under American and international law. The application and implementation of these techniques was and is a crime. 108 detainees have died from these techniques. Scott Horton's assessment in Harper's:
"The introduction of torture techniques destroyed America’s reputation around the world, dramatically eroded a system of alliances that generations of Americans fought and labored to sustain and build, and provided the basis for a dramatic recruitment campaign for terrorist groups who are the nation’s principal adversaries in the war on terror."

The senior officials in the Bush administration involved in planning and authorizing these techniques have increased the terrorist threat to America with these actions. They should be held accountable - maybe "slapped" around?

Posted by Stephanie | April 10, 2008 11:26 AM

waterboarding for a short period of time, where there is no actual drwoning occurring and no possibility of physical harm to the subject

It is impossible to waterboard without actual drowning and no possibility of physical harm occuring. Waterboarding is drowning, period. The above sentence makes as much sense as talking about "burning someone for a short period of time, where there is no actual burning occurring."

Posted by Stefan | April 10, 2008 11:28 AM

Stress positions and sleep deprivation are used on military recruits all the time, to no ill effect. If they are used to the same extent with terrorist detainees (i.e., not to the point where they might cause permanent harm), than what's the problem with that? Are you prepared to call routine aspects of military basic training "torture" and "war crimes"? Should terrorist detainees get treated better than we treat our own military recruits?

Anything that I had to go through at Ft. Benning, GA, is fair game for terrorists, as far as I'm concerned.

Posted by Fred | April 10, 2008 11:34 AM

The best thing about these quacks is that if they're right, and there really is a judgmental God waiting for all of us, they're all going to burn in hell for eternity.

Posted by 55 | April 10, 2008 11:35 AM

The Airline Bomb Plot
April 10, 2008; Page A14

Barack Obama, Hillary Clinton and John McCain brought their presidential campaigns to the Petraeus-Crocker hearings on Iraq this week. An Iraq-based reporter appearing on one of the cable networks in the evening said the hearings struck him as oddly decoupled from the daily reality of war for the Iraqi people and U.S. troops there. Yup, never hurts to pinch yourself hard on entering presidential campaign space right now.

The three candidates addressed Gen. David Petraeus in tones of high gravitas equal to the thin altitude of the American presidency. Sen. Obama colloquied with Gen. Petraeus about the status of al Qaeda in Iraq – asking whether the terrorist organization could "reconstitute itself" and said that he was looking for "an endpoint."
WSJ's Wonder Land columnist Dan Henninger discusses the disconnect between U.S. politics and global terrorism. (April 9)

Here's another hypothetical: Would this conversation be different today if in August 2006 seven airliners had taken off from Terminal 3 at Heathrow Airport, bound for the U.S. and Canada and each carrying about 250 passengers, and then blew up over the Atlantic Ocean?

It is a hypothetical because, instead of the explosions, British prosecutors this week presented their case against eight Muslim men arrested in August 2006 and charged with conspiring to board and blow up those planes.

The details emerging from that case are quite remarkable and will be summarized shortly. Pause to reflect on the ebb and flow of public debate that has occurred over how free societies should order themselves after two airliners full of passengers knocked down the World Trade Center Towers on Sept. 11 in 2001.

The view that 9/11 "changed everything" did not hold up under the weight of our politics. Divisions re-emerged between Democrats and Republicans, in office and on the streets. These fights reignited over the Patriot Act, Guantanamo and the warrantless wiretap bill (or "FISA" revision). These arguers stopped to stare momentarily at their televisions when Islamic terrorists committed mass murder in the 2004 Madrid train bombing and the 2005 London subway bombing.

One sometimes gets the feeling that our policy debates over national security and the journalism that travels with them float, as it were, at 30,000 feet above the reality of the threat on the ground. A novelist or filmmaker, alert to the personal demons that drive modern terror, would with fiction better clarify what is at stake. Start with the details of the eight defendants now on trial in England.

The names of the accused plotters, all men in their 20s, are Abdullah Ahmed Ali, Assad Sarwar, Tanvir Hussain, Mohammed Gulzar, Ibrahim Savant, Arafat Khan, Waheed Zaman and Umar Islam. They lived around London, in Walthamstow, Leyton, Plaistow and Barking. Most are Pakistanis.

Abdullah Ahmed Ali was caught on a wiretap telling his wife that he wished to bring his baby son along on the suicide mission. She resists. His suicide video, intended to become public after the planes blew up and shown at trial, promises "floods of martyr operations against you" and "your people's body parts decorating the streets."

Waheed Zaman studied biomedical science at London Metropolitan University. In his video Zaman says, "I have been educated to a high standard. I could have lived a life of ease but instead chose to fight for the sake of Allah's Deen [religion]."

Umar Islam mocks complacent Brits: "Most of you too busy, you know, watching Home and Away and EastEnders, complaining about the World Cup, drinking your alcohol." This would be fascinating as one nut's reason for murder. It is instead the basis for an ideology to justify blowing up thousands.

The prosecution said a computer memory stick on one of the men at his arrest listed the targeted flights. They were: United Airlines Flight 931 to San Francisco; UA959 to Chicago; UA925 to Washington; Air Canada 849 to Toronto; AC865 to Montreal; American Airlines 131 to New York and AA91 to Chicago. The first flight would depart at 2:15 p.m., the last at 4:50 p.m., allowing all to be aloft and out of U.S. or British airspace when they fell.

The private intelligence-analysis agency, Stratfor, concludes from the trial that "al Qaeda remains fixated on aircraft as targets and, in spite of changes in security procedures since 9/11, aircraft remain vulnerable to attack."

The men planned to take the bomb pieces onboard for assembly: empty plastic bottles, a sugary drink powder, hydrogen peroxide and other materials to be detonated with the flash on disposable cameras.

The arrests of the men, who say they are innocent, were the result of broad and prolonged surveillance. For months, the suspects were bugged, photographed and wiretapped.

Here in the U.S., our politics has spent much of the year unable to vote into law the wiretap bill, which is bogged down, incredibly, over giving retrospective legal immunity to telecom companies that helped the government monitor calls originating overseas. Even granting there are Fourth Amendment issues in play here, how is it that Speaker Nancy Pelosi, Hillary Clinton and Barack Obama cannot at least say that class-action lawsuits against these companies are simply wrong right now?

Philip Bobbitt, author of the just released and thought-provoking book, "Terror and Consent," has written that court warrants are "a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities." Planning atrocities is precisely the point.

"Atrocity" is a cruel and ugly word, but it has come to define the common parameters of the world we inhabit. It is entertaining to watch the candidates trying to convince the American people of their ability to be presidential. It would be more than nice to know, before one of them turns into a real president this November, what they will do – or more importantly, will never do – to stop what those eight jihadists sitting in the high-security Woolwich Crown Court in London planned for seven America-bound airliners over the Atlantic Ocean.

Posted by LarryMoron Honorable Al | April 10, 2008 11:43 AM

Again for the record, Al's analysis of what constitutes a war crime has no basis in U.S. law. Even as amended by the MCA of 2006, 18 USC 2441 (defining war crimes, AKA the War Crimes Act) would cover the coercive interrogation of KSM through waterboarding, slapping, or so on, because those are all "grave breaches" of Common Article 3 of the Geneva Conventions. Actual physical harm is not required.

Incidentally, I think the MCA of 2006 is going to turn into a serious legal trap for potential war criminals, unless of course they get pardons (which they probably will). These people are used to John Yoo's pretzel logic, so they read that Act as providing them with retroactive immunity for things that were clearly war crimes under the original Act. The problem they will encounter if they actually get into courts is quite simple: it is going to be awfully hard to argue that they managed to break hardened enemies of the United States through these physical and mental assaults without having violated the War Crimes Act, even as redefined by the MCA of 2006.

Posted by DTM | April 10, 2008 11:45 AM

Well,

Your troops can say fuck it and go home Freddy, but your detainees can't. And you can go fuck yourself. You and your Nazi ideas.

Posted by horatius | April 10, 2008 11:50 AM

It may be fun to make sport of a right-wing caricature like Al, but the sad truth about this country is that most people seem to approve of torture if it's in the name of protecting us.

It is depressing how may conversations I had with people who seem otherwise normal, but will argue that we don't have a choice but to do "whatever we have to do" to protect ourselves from future terrorist attacks. These are not partisan right wingers. Just regular folks who are far more interested in sports than politics and have no strong feelings about any one party and are as likely to vote for a Democrat than for a Republican. They are my suburban Ohio neighbors, and they come as close to being the average American as you're likely to encounter. They will express a reluctance and even a little queasiness at the specifics of "whatever we have to do," but as long as no limbs are being cut off, they seem willing to accept torture as a necessary state tool. So waterboarding and sleep deprivation and isolation are all fine since they are not gory -- in most people's minds torture is not torture if it does not involve bleeding. Why do you think our war criminals chose this technique instead of, let's say, nail pulling?

It really doesn't help to try and describe how horribly traumatic even non-gory torture techniques are. As long as we're not cutting off stuff, we're the de facto good guys and we're doing "whatever we have to do." Most of us commenting in Matthew's liberal ghetto may consider waterboarding torture and we may subscribe to the principle that all coercion is torture and all torture is immoral and that's that, without exceptions (I certainly do). But talk to your neighbors and you'll be saddened to realize that we're a distinct minority.

No trials will ever be held for our war criminals because most people in this country have been complicit in these crimes by their own acquiescence. They will read the ABC story and just figure out that these are bad times and what happened had to be done. At the end these terrorists broke down, without loosing any limbs, and we're all so much safer.
____________________________________________

Posted by Aris | April 10, 2008 11:51 AM

Fred,

Heck, boxers beat the crap out of each other--I've seen it on the TV. So I guess we should also be able to do that to our military detainees (and obviously other countries should be able to do that when they detain our people, right?).

Again, this sort of nonsense won't survive scrutiny in a court. Hence, I suspect a mass of pardons will be used in an effort to keep this nonsense from ever getting to a court.

Posted by DTM | April 10, 2008 11:52 AM

Al said... "Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding."

All prosecuted as war crimes after WWII. Oopsie! Maybe you should study a little history, Al.

MarkG said... The objective journalist proclaiming no "alleged" war crimes, but flat out guilt by accusation on the journo's part.

It's pretty clear. If they ordered these acts and had full knowledge of them (which they reports said they did), they are guilty. Not a tough one, even for a right-wingnut.

It's what those great champions of the universal rights of man would do: Khaled Sheik Mohammed and Osama bin Laden.

If A then Z. Love your logic. It's the inability of the right-wingnuts to put together a logical series of thoughts that got the U.S. into the Iraq mess in the first place.

TheOtherCyrus said... If you share in the hegemonic consensus on American foreign policy, you countenance this and worse necessarily, and crying about a few, frankly deserving (Khalid Sheikh Mohammed, for instance), eggs getting broken is naive and precious. If you don't like getting your hands dirty, I advise you find a different game to play.

Over 100 died while in U.S. custody. The U.S. military itself ruled several dozen of these deaths homicides. We've released over 1,000 without charges, despite torturing many. We did renditions so people, including those released without charges, were tortured by others.

Of course, they're brown, foreign, and non-Christian, so I don't imagine it bothers you. It's not like they're real human, right Cyrus?

Posted by LFC | April 10, 2008 11:54 AM

LarryMoron Honorable Al ,

I never knew that shitting all over your pants at the mention of the word Arab is honorable. Go hide in a closet pansy. And while you are at it, you can read what George Washington had to say about how to treat detainees.

Posted by horatius | April 10, 2008 11:55 AM

LFC,

Right.

Cy

Posted by LFC Moron | April 10, 2008 11:57 AM

horatius,

the terrorists in the article were Pakistani Muslims. But, then again, you can't read.

scatalogical logic becomes you-- sh*t for brains.

Love,

LMHA

Posted by horatius can't read | April 10, 2008 12:04 PM

And while you are at it, you can read what George Washington had to say about how to treat detainees.

At what point did the right-wing become such a band of pee in their pants pussies? Was it 9/11? Have they always been this bad? It's amazing, but they seem to need to lash out at somebody, ANYBODY, even if they had nothing to do with attacking the U.S. Attacked by AQ? Retaliate against Iraq!

Scared. Trembling. Sniveling. About all they seem capable of is bluster. They're definitely too weak to uphold the Constitution, laws, or treaties. Pathetic.

Posted by LFC | April 10, 2008 12:07 PM

Aris,

I think you may be underestimating the possible influence of actual trials involving actual facts on public opinion. It is true that when these questions are put to people in terms of hypotheticals, many people end up agreeing to hypothetically support torture and other war crimes. But when you move from the realm of the hypothetical to the actual, I think things often change considerably. That is largely because most Americans are not in fact sadists.

Indeed, that is part of why the CIA destroyed those interrogation tapes. They know that no matter what other documentary evidence might exist, if the public ever saw tapes of actual interrogations, that would make prosecutions far more likely.

Posted by DTM | April 10, 2008 12:08 PM

We did renditions so people, including those released without charges, were tortured by others.

So that's also torture. Time to lock up Bubba, then. He's the one who introduced the practice so as to avoid all that murky public political arguing over things like "enhanced interrogation," etc.

Posted by MarkG | April 10, 2008 12:13 PM

"Why are we talking about this in the White House? History will not judge this kindly." -- John Ashcroft Exactly. They knew what they were doing was wrong, and there might be consequences. You're probably right that they'll never face prosecution, but if there were any justice they'd be shipped off to the Hague on the next plane.

Posted by Madison Guy | April 10, 2008 12:14 PM

DTM,

I like where you live. La-la land is very nice. Is it sunny? do you have your burqa?

BA

ps -- you must be a third-tier law student out to show her "knowledge". so go back to your books and bring me back some cases -- you know, the ones where it clearly states that "slapping" is a war crime.

that would make just about every American soldier ever a war criminal. But you'd like that wouldn't you.

Posted by DTMidiot | April 10, 2008 12:15 PM

Aris | April 10, 2008 11:51 AM

Probably the best summary of this you're going to find. Unfortunate, but true.

Posted by socctty | April 10, 2008 12:18 PM

Over 100 died while in U.S. custody. The U.S. military itself ruled several dozen of these deaths homicides. We've released over 1,000 without charges, despite torturing many. We did renditions so people, including those released without charges, were tortured by others.
Of course, they're brown, foreign, and non-Christian, so I don't imagine it bothers you. It's not like they're real human, right Cyrus?

I don't lose sleep over it, if that's what you mean. I imagine you don't, either, not really. Still, you're missing the point. I don't want to play the empire game anymore. I want America to come home. Those of you who want America involved in every corner of the world sound like a bunch of hypocritical ninnies whose chief objection to this sort of thing, which always goes along with world domination, even world domination for the sake of your high-flown liberal principles, is that it's being done under the administration of the opposing party. I'm going to save this thread, though, so I can refer to it four years hence when President Obama is dropping cruise missiles on wedding parties in Outer Ruritania and placing suspects of something or other in the tender hands of Slobovia's security services under some suitably renamed, rebranded version of extraordinary rendition. It's change we can believe in!

Posted by TheOtherCyrus | April 10, 2008 12:18 PM

The terrorist rights lovers here are describing a scenario that would completely paralyze the US government and derail whatever agenda the party in power had until the "show trials" were finished. You might also see the 1st serious wave of nationwide domestic political violence since the black riots of the 60s. Where people would be targeted based on political belief of enabling terrorists, and liberal, then conservative centers burned. Then courtrooms - burned.

Sign of the continuing stupidity of thinking US criminal law applies in wartime

Yep, striking KSM in an effort to coerce information and confessions out of him was a crime under U.S. law--it isn't even a remotely close call. And no, there isn't a "but he was a really bad guy!" exception in U.S. criminal law.
Posted by DTM

Strictly applying US criminal law to our soldiers, sailors, and Marines - most engagements of lethal force they did meet the criminal definition of murder. They killed a human being with aircraft weaponry or ground-based fire with no threat to their immediate personal safety. They had no reason to believe the Jihadi was a fleeing felon or escaped prisoner. They SHOT UNARMED human enemy on occasion, and in many cases, did not give the poor human beings they killed a chance to surrender or drop weapons.

Obviously, except to the worst Leftists and transnational Jewish progressives, all our soldiers are not murderers. But they are bound by military Code instead of Civilian Code that affords them substantially less rights under the 1st, 5th, 6th, 7th, and 14th Amendments. And a range of criminal charges that do not exist in the civilian criminal system. Volunteers and Draftees alike, plus training and work around high-hazard, high kinetic systems that killed more troops in peacetime each year under Jimmy Carter than died each year under Dubya. And their training of necessity can be brutal and as grueling as anything the terrorist rights lovers precious Kahlid Sheikh Mohammed was subjected to.

Anything that I had to go through at Ft. Benning, GA, is fair game for terrorists, as far as I'm concerned.
Posted by Fred

Unfortunately, so few Lefties or Jewish activist lawyers serve in the real military that they have no clue what Benning, Quantico, Ranger School, even AF OCS is like.

I agree with Fred. Nothing are guys have to do should be too "demeaning" or "causing too much Jihadi discomfort" to use on the enemy - which - of course, in AQ's case, is completely outside Geneva.

In really bad times, US soldiers are ordered into certain or near-certain death and held to be military criminals if they disobey such a command.

So the enemy-lover argument appears to be - that terrorists have to have more rights than our own troops and need more US Constitutional protections.
Good luck with foisting that on the American people and hauling off people they consider heroes for show trials! They see a new leadership siding with the enemy? Get ready for guns and gasoline time.

Posted by chris ford | April 10, 2008 12:25 PM

DTMidiot - You fucking shitbag.

1) No one is talking about prosecuting US soliders - although if they did willing commit war crimes, they should be prosecuted. Nevertheless the majority of the fault lays at the hands of the people who authorized and encouraged them to, which seems to be Powell, Cheney, Rice and company. And I say this as someone who is in the military.

2) Everyone sees why you brought this up - so that you could drag the argument into whether or not people "support the troops". It's the same tactic that has people debating with you whether or not slapping is torture. Of course it's not as agregious as water-boarding or breaking limbs. It's still against the law to have a systemic program to encourage this sort of conduct.

You GOPpers can try to turn this into a "patriotism" argument like you always manage to do, but I'm afraid it just might not work this time.

Posted by socctty | April 10, 2008 12:26 PM

Chris,

lose the jewish problem bud.

BA

Posted by BA | April 10, 2008 12:30 PM

I have not had the time to read through all of the comments. So I hope I am not repeating something when I say that opposition to the ICC is not somehow just a new thing or a Bushie thing. The Clinton administration was totally against it, did not support the negotiations of the treaty and did not sign until 3 years after it was agreed and voted on by 120 countries and just 3 weeks before he left office. Not exactly a ringing endorsement of human rights from Bill and basically a meaningless gesture when he knew full well that Bush was taking over and would likely "unsign" it or whatever.

You need to spread the pain a bit more fairly on these things. More responsive action on the ICC treaty by Bill could have institutionalized it in the US by the time Bush got there.

Posted by Bubba | April 10, 2008 12:36 PM

soccty,

obviously, someone who has the intelligence to write - "You fucking shitbag" might find it difficult to spell "agregious."

You being a member of the military is about as likely as me being a liberal blogger. Please go back to your junior high math class.

SAA

Posted by socctty abuses animals | April 10, 2008 12:36 PM

Al, if someone raped you up the butt for only 30 seconds and didn't leave any physical damage, would it no longer be considered rape?

"Anything that I had to go through at Ft. Benning, GA, is fair game for terrorists, as far as I'm concerned.

Posted by Fred | April 10, 2008 11:34 AM"

We're not talking just about known al-Qaida members here. We're also talking about farmers, fathers and sons, picked up for being in the wrong place at the wrong time in Iraq and then tortured. We're talking about people who have Urdu names but when Romanized look like the Arabic name of a known terrorist and are then picked up and tortured. Both of these examples have happened. People aren't being tortured after trials that determine they are terrorists. You chose to join the military. No one chooses to be arrested by someone who doesn't know their culture. The Pentagon admits to having photographic evidence of at least one American soldier raping an Iraqi woman at Abu Ghraib. Were you raped on camera while you were in basic training? When you create a system of torture, those values get passed onto others without the training, skills or maturity to use them as professionals. That's how you get Abu Ghraib. Al and Fred here are defending a system that enables rape.

Posted by Reality Man | April 10, 2008 12:39 PM

Also, if you pick up an innocent person, torture them and then release them once you realized you fucked up, you've just created a terrorist. During the Battle of Algiers, FLN members were told that if they were tortured, they should give the names of non-members that had some sympathy for the French as their contacts and confederates. The moderates were then picked up, tortured and radicalized. Why do you think France was unable to hold onto Algeria?

Posted by Reality Man | April 10, 2008 12:50 PM

Also, if the intelligence gathered from torture was so valuable, why have we outsourced some of our torturing to Syria?

Posted by Reality Man | April 10, 2008 12:58 PM

DTMidiot,

Of course slapping isn't always a war crime--what a silly idea. But it is a war crime when you are slapping a military detainee in order to coerce them into providing you with information and confessions.

Now, I could in fact cite you some relevant law on this subject, but I am going to guess that won't be productive, because you strike me as the sort of John Yoo fan who wouldn't be particularly interested in an actual legal discussion. And in any event, it turns out we have a way of resolving legal disputes in this country: it is called a judicial system.

Accordingly, I would be content to let neutral federal prosecutors investigate these cases, seek indictments from federal grand juries if they thought there was probable cause, and prosecute these cases in federal criminal courts if they obtained indictments.

How about you?

Posted by DTM | April 10, 2008 1:00 PM

Unfortunately, so few Lefties or Jewish activist lawyers serve in the real military that they have no clue what Benning, Quantico, Ranger School, even AF OCS is like.

Pretty good description of nearly this entire administration, Chris. That's why they don't understand ... well, anything.

Posted by LFC | April 10, 2008 1:01 PM

American soldiers who were slapped by Japanese interrogators considered it torture and a war crime. Were they just being pussies? Of course not. Begin, who was tortured by the Soviets, considered slapping to be a form of torture as well and criminalized it in Israel (unfortunately, there are so many loopholes in Israeli law that torture is de facto legal).

Posted by Reality Man | April 10, 2008 1:11 PM

By the way, I generally find that Chris Ford doesn't post things that I would consider worthy of a response. So I will just note here that the War Crimes Act specifically states that it applies to members of the U.S. Armed Forces.

Posted by DTM | April 10, 2008 1:13 PM

DTM,

I revise my earlier post. You must be pre-law. don't you have lexis-nexis where you are?

To actually engage in a discussion with a real lawyer, you might want to bring some caselaw along. So bring it.

DTMIdiot

PS -- your notion of having a federal prosecutor look into "war crimes" by the military illustrates how naive, young or simple minded you are. Federal Prosecutors don't look into these things -- military prosecutors do. And as for Federal prosecutors looking into indicting members of a sitting administration for "war crimes" well, then, I'd love to see that POLITICAL prosecution by anyone. please do that, that would hand my GOP the next election in a heartbeat.

Posted by DTMIdiot | April 10, 2008 1:15 PM

Should terrorist detainees get treated better than we treat our own military recruits?

If they were, they wouldn't be detainees, now would they? No matter how gently treated for purposes of interrogation, an enemy detainee's situation is *by definition* worse than that of a recruit because he is a prisoner. So your question is disengenuous.

Posted by Ryan | April 10, 2008 1:16 PM

"And as for Federal prosecutors looking into indicting members of a sitting administration for "war crimes" well, then, I'd love to see that POLITICAL prosecution by anyone. please do that, that would hand my GOP the next election in a heartbeat.

Posted by DTMIdiot | April 10, 2008 1:15 PM"

So basically you're admitting you're a fascist? The fact that you care more about your party doing well than about the rule of law, human rights, conduct becoming of civilized people - the very ideas this nation was founded on - suggests that you are a fascist. The Executive Branch is not a monarchy nor an elected dictatorship that can do whatever it wants, break any law it wants and doesn't have to answer to anybody.

Posted by Reality Man | April 10, 2008 1:19 PM

Reality Man,

Indeed--of course we would consider it a war crime if our military personnel were slapped by their captors during interrogations in an effort to coerce them into providing information and confessions.

Again, this is not exactly a close call.

Posted by DTM | April 10, 2008 1:22 PM

Al,

Would you be willing to be slapped, pushed and waterboarded in order to make determinations as to whether this rises to torture?

Posted by Randy Paul | April 10, 2008 1:27 PM

Indeed--of course we would consider it a war crime if our military personnel were slapped by their captors during interrogations in an effort to coerce them into providing information and confessions.

More to the point, we have done so for many, many decades. I find it disturbing to see some of the posters here approve of techniques that the U.S. has actually declared as war crimes when it was done to them. I guess it's anything goes if you're American ... and the "one God" is on your side.

Posted by LFC | April 10, 2008 1:27 PM

Please don't feed the trolls. They are unworthy of our attention, which is what they crave. Please drop the profanities; it is corrosive.

During the early Republican debates, John McCain noted that, when he and is buddies were being tortured by the North Vietnamese, what kept them going was the knowledge that we would never do this ourselves.

As McCain said abot why we ought not torture: "It's not about them. It's about us."

What began with George Washington, who insisted that British POWs be treated well (this is where it started for the U.S. of A.), up until this coward and war criminal, will begin again under a President Obama or McCain. We will think of these eight years as our years outside the law.

One of life's great truths is that all bullies are cowards. The cowardice of Bush, Cheney and the rest remains mostly unnoticed by the MSM. Too bad. As some Greek philosopher (extra credit: name him), said, to paraphrase a bit, nearly 3,000 years ago: "A nation that makes distinctions between its fighting man and its thinking man will have its fighting done by fools and its thinking done by cowards."

Posted by maxgowan | April 10, 2008 1:27 PM

Time to lock up Bubba, then.

Fine with me, if you'll grant that it entitles us to lock up Georgie, too.

Posted by Ryan | April 10, 2008 1:30 PM

"Again, this is not exactly a close call.

Posted by DTM | April 10, 2008 1:22 PM"

How far we've sunk that this even has to be said.

One of the big reasons why democracies are better than dictatorships in theory is that democracies, which answer to their own people, aren't supposed to torture people. Instead, we torture people like Padilla who become broken and wait for Bush to swoop in and save them. The whole thing is just beyond sick. If you are supporting this, you have to examine if you can really consider yourself a decent human being instead of rape-loving pond scum. Either you are in favor of tapping into our long history of success in non-torture-based interrogation or you can support techniques used by the Nazis and the Khmer Rouge.

Posted by Reality Man | April 10, 2008 1:32 PM

Alright, then. I see everybody's having a nice day.

But seriously--I find it worrying that I look all over the Internet news aggregators and find not a word about this "Principals" story. I literally had to go to the ABC News web site to find it. Is this story going to drop big-time over the next 24 hours--or is it just going to be ignored, given the happy news that Sean Penn and Robin Wright Penn are trying to reconcile? Just shoot me....

Posted by elle loco | April 10, 2008 1:38 PM

sanity has lost out to legal dogma.

Chris,
lose the jewish problem bud.
BA

IF we could lose the Jewish transnational progressive problem, it would be a big positive in helping the ACLU, Human Rights NGOs, and former Jewish Bolshevik Front groups become positive forces honestly interested in making positive contributions for ALL Americans, and the nation.

Thanks for the affirmation, BA!
***********************************
Were you raped on camera while you were in basic training? When you create a system of torture, those values get passed onto others without the training, skills or maturity to use them as professionals. That's how you get Abu Ghraib. Al and Fred here are defending a system that enables rape.
Posted by Reality Man

Breakdowns in military discipline happen in every military. We hanged 16 American men in the UK during WWII, mostly black, for raping British,
French, and German nationals.
Problems with black thugs and high profile gang rapes and murders by mainly black servicemen continues to harm our presence of troops in Japan, Okinawa, and Korea.

It has nothing to do with "systems of torture", everything to do with good order and discipline of subordinants and even then militaries are burdened with a certain share of black thugs, depraved rednecks, psychopathic Japs, sadistic French that no amount of training and discipline will deter if you let your organization's guard down...or have to place a certain amount of trust in the idea that 99.9% of off-duty servicemen will avoid serious UCMJ offenses.
It is true that a military can impart an ethos that rape and murder are OK. Witness the Japanese military of WWII, the various black African insurgent groups, Al Qaeda, the Ottomans when it came to the Armenians, Chaldeans, and Greeks. But by metrics, the US is historically the best behaved occupation force in history with the least number of rapes, thefts, murders by a conquering army.

Posted by chris ford | April 10, 2008 1:40 PM

Chris,
Great posts, the one possible exception might be the U.S. in the Phillipines, back 100 years ago. We were pretty savage occupiers. Of course, it's the old Henny Youngman story, right? This site could use more of your knowledge of history.

Posted by maxgowan | April 10, 2008 1:49 PM

But, but, but...Clinton got a blow job! And he lied about it!

Posted by calipygian | April 10, 2008 1:51 PM

maxgowan,

Chris' "knowledge" of history boils down to this --
Jews bad. blacks bad. military good.

PJ

ps -- my transnational jewish uncle, who dropped behind enemy lines on the eve of D-Day, is the reason Chris is writing in English, rather than German. But he'd rather the later, clearly.

Posted by PJ | April 10, 2008 2:10 PM

I liked Chris's post of 1:40 PM and thought it to be mostly accurate.

My knowledge of history is: Jews good. Muslims good. Christians good. Blacks good. Military depends; not so good in the Phillipines and elsewhere, but also exemplary in many instances. I used to think draft bad (turned 18 in '71) but now believe a universal draft would be good. We would never be in the pickle we are in now. Same in, oh, 1966, when we had a phony draft. But I digress.

Civil posts good. Uncivil posts bad.

Posted by maxgowan | April 10, 2008 2:35 PM

Aris wrote:
No trials will ever be held for our war criminals because most people in this country have been complicit in these crimes by their own acquiescence. They will read the ABC story and just figure out that these are bad times and what happened had to be done. At the end these terrorists broke down, without loosing any limbs, and we're all so much safer.

I agree, Aris. Sadly, I think it's more effective to appeal to fear; to suggest that at some point our own government could torture us for our political beliefs(whether conservative or liberal) brings the point into focus. After all, many conservatives genuinely believe in the right to carry a gun for this purpose: until recent times it was the fear of commie takeover. Likewise, we need these laws to be obeyed not just to protect foreign peoples and our soldiers, but to protect ourselves from a govt that might try to squash political dissidents here at home. I would think that true conservatives(anti big-government) especially would find an appeal of this argument and would be dismayed by torture advocacy for this reason alone.

Posted by kristi | April 10, 2008 2:49 PM

PJ,

I forgot:

Torture Bad. No exceptions.
"It's not about them. It's about us."
- John McCain, once.

Matt does seem to attract a surplus of:

White guys;
Over 30 but not middle-aged (yet);
No only no kids but still single;
No military experience, but you wouldn't know it;
Lived a limited, "small" life;
A lot of anger issues;
Too much time on their hands.

Posted by maxgowan | April 10, 2008 2:49 PM

Unreality Man - What began with George Washington, who insisted that British POWs be treated well (this is where it started for the U.S. of A.), up until this coward and war criminal, will begin again under a President Obama or McCain.

Hardly. Washington determined that any spy or British soldier or saboteur caught out of uniform would be tried by a military tribunal and if guilty, executed by hanging. He personally ordered the deaths of several, including a squad sent to burn the docks of Boston, the famous Major Andre. Like AQ, they did not qualify as honorable POWs, but were the unlawful enemy combatants of that war, the war of 1812, Civil War, WWII. Once caught, expeditiously made into worm-food.
That KSM lives in relative comfort 6 years after 9/11 is a tribute to America's conversion to Jewish style legal justice that abandons swift and certain punishment for endless debate, lawyers fees, and endless appeals & "due process".

In 1780, in the midst of the war against England, American soldiers apprehended Major John Andre, a British officer captured at night "in a disguised habit" (Washington 1937, 20: 101). General Washington did not want Andre "treated with insult," but by substituting civilian clothes for his military uniform "he does not appear to stand upon the footing of a common prisoner of war and therefore he is not entitled to the usual indulgences they receive" (ibid., 87). Andre was tried by military commission and hanged as a spy (Sargent 1871, 344-96). Alexander Hamilton tried to modify Andre's sentence to shooting to assure a swift death, rather than the slow strangulation of American-style hanging at the time that took 20-30 minutes to cause the death of the condemned. Washington refused.

Washington and figures like Ben Franklin of the Committee on Secret Correspondence - were hearty supporters of life-saving interrogations of captured Brits and loyalists.

In the Civil War, the Congressional Law saying any alien enemy found out of uniform may be executed was modified to "all persons" to allow US citizens to be executed after military tribunal. "Bushwhackers", Confederate irregulars not wearing uniform, did not even qualify for that. They were hunted down and dispatched with no trial unless saved for intelligence value. Several spies and saboteurs were captured and hanged, including Major Robert C. Kennedy, caught trying to start fires in NYC.

WWII had Ex Parte Quirin.

******************
ps -- my transnational jewish uncle, who dropped behind enemy lines on the eve of D-Day, is the reason Chris is writing in English, rather than German. But he'd rather the later, clearly.
Posted by PJ

Good for him. There were many patriotic Jewish-Americans serving either Uncle Sam or the Soviets they had 1st alliegence to, but Jewish-Americans still had one of the lowest volunteer rates of any group in WWII. Part of the reason the Draft picked up was resentment that certain religious and ethnic groups were holding back, hoping others would pick up the risk and that they could instead substantially boost their fortunes in the war economy.
Jews, Puerto Ricans, certain pacifist Christian strains had the lowest volunteer rates. Native Americans, white Southerners, Scots-Irish the highest.

But many Jews served with distinction on America's side, like Frank Lautenberg, Fred Crown, Cap Weinberger. They more than made up for the shirkers and the Rosenberg sorts. It is a pity that their inspiration was not picked up in subsequent generations that have come to be more "Rosenberg-like", and loathe the US soldiers more than they support them.

Posted by chris ford | April 10, 2008 2:56 PM

Al,

Would you be willing to be slapped, pushed and waterboarded in order to make determinations as to whether this rises to torture?

This thread was done long ago, but let me just respond to this. Yes, if it was my job to make that determination, I would. And, in fact, one of the DOJ personnel who had to make that determination did, in fact, subject himself to waterboarding. And he came to the same conclusion that I stated above (and, indeed, my conclusion was based in part on his): that waterboarding must be performed in a highly limited way to be legal, but it is not illegal per se.

Posted by Al | April 10, 2008 2:58 PM

Spies were always executed. That's not an honest argument. For the rank and file POWs, Washington set a policy of enlightenment.

Posted by maxgowan | April 10, 2008 3:01 PM

Of course Washington's POWs could be tried, convicted, and punished for any crimes they committed, including violations of the laws of war (such as spying). That remains true today. Our treaties simply require that the POW be given the same judicial process we would give our own military personnel (a fairly reasonable standard, one would think).

By the way, Washington's version of the UCMJ (the Articles of War) also specified that members of the Army would be subject to the jurisdiction of the civilian courts. Again, that remains true today (the military courts do not have exclusive jurisdiction over military personnel).

Posted by DTM | April 10, 2008 3:14 PM

chris,

umm, first of all cap weinberger isn't jewish and resents being identified as such. shows how little you know.

secondly, please provide a shred of evidence that jewish volunteer rates were low. complete bs. once the us entered the war, the draft was mandatory. whatever "volunteers" there were is quite besides the point. And please state your methodology -- the military does not list its members by religion, so how would you know?
http://en.wikipedia.org/wiki/Conscription_in_the_United_States#World_War_I_and_World_War_II

in a related point, I remember seeing a stained glass artistic rendering in London church of the Battle of Britain. the (non-jewish) guide told us that the multiple stars of david in the piece (and this was in a church) were there to honor the many jews who volunteered as pilots in the Battle.

so please keep your bs prejudices to your own wing-nut circle jerk.

PJ

for those interested - http://www.nmajmh.org/americanJewish/index.php

http://www.arlingtoncemetery.net/jews.htm

World War I and World War II

Conscription was next used after the United States entered World War I in 1917. The first peacetime conscription came with the Selective Training and Service Act of 1940, which established the Selective Service System as an independent agency. The duration of service was originally twelve months. It was expanded to eighteen months in 1941. When the United States entered World War II, service was required until six months after the end of the war.

As manpower need increased during World War II, draftees were inducted into the U.S. Marine Corps as well as the U.S. Army. During this time period the US lowered the draft age to 17.

Posted by PJ | April 10, 2008 3:16 PM

chris,

"there were many patriotic Jewish-Americans serving either Uncle Sam or the Soviets they had 1st alliegence to.."

oh please. Jewish-Americans, who ran as fast as they could from Mother Russia, did not "serve" in the Red Army.

your right-wing rank "make it up" anti-semitism grates. Please find another place to peddle your crap.

RWL

Posted by Right wing loon | April 10, 2008 3:22 PM

PJ, I see your point.

Posted by maxgowan | April 10, 2008 3:23 PM

Yes, if it was my job to make that determination, I would.

No guts, no glory. Jackass.

Posted by Randy Paul | April 10, 2008 3:26 PM

I don't think we have to await International Jurisdiction to try murder and torture cases. Rumsfeld and Yoo are obvious candidates for RICO charges. I don't think the international courts are more than a pipe dream, which isn't much justice - it is a bunch of empty words. However, I do think that charging the murderers with murder, as often as possible, in print, would either force the murderers and torturers to sue for libel, or could be the first stage in a movement to bring them to justice. And of course there is the State Department, which assisted in the coverup of the murder of Raheem Khalif Hulaichi, which was committed by Blackwater employee Andrew Moonan, on the night of December 24, 2006. Margaret Scobey, the acting ambassador to Iraq, then facilitated his escape from the country, in effect becoming an accessory to murder, and the State Department covered up his crime - and each State Department employee that did that is an accessory to murder.

That would be a nice project for a MoveOn spinoff - move on the torturers, from top to bottom.

Posted by roger | April 10, 2008 3:42 PM

so go back to your books and bring me back some cases -- you know, the ones where it clearly states that "slapping" is a war crime.

H.R. 3680

The War Crimes Act of 1996, as amended.

Sec. 2401. War crimes

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

(b) CIRCUMSTANCES- The circumstances referred to in subsection (a) are that the person committing such breach or the victim of such breach is a member of the armed forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) DEFINITIONS- As used in this section, the term `grave breach of the Geneva Conventions' means conduct defined as a grave breach in any of the international conventions relating to the laws of warfare signed at Geneva 12 August 1949 or any protocol to any such convention, to which the United States is a party.

Posted by Stefan | April 10, 2008 3:48 PM

Stefan,

jackass -- that's not caselaw; that's a statute.

secondly, since under no valid interpretation of the geneva conventions would KSM be protected by the GC (b/c he's a terrorist, fighting OUT of uniform), this law doesn't apply to him.

Nice try. Now will some real lawyer bring some cases forward. You're almost as dumb as roger -- RICO by its terms cannot apply to government actions.

Moronic-leftist-alliance.

DM is an idiot but stefan and roger are morons.

Posted by DMIdiot | April 10, 2008 4:29 PM

DMIdiot,

Again I don't sense you are interested in a serious legal discussion, but I wanted to note that the MCA of 2006 amended the War Crimes Act precisely because in Hamdan v. Rumsfeld, 548 US 557 (2006), the Supreme Court held that the Geneva Conventions (specifically Common Article Three) applied to our detainees in the "war on terror".

Incidentally, I don't know if there have been any prosecutions yet under 18 USC 2441 as amended by the MCA of 2006. So you are free to look, but I am not sure the caselaw you are hoping to find exists yet.

Again, though, I'd be happy to see such caselaw made.

Posted by DTM | April 10, 2008 4:46 PM

Your troops can say fuck it and go home Freddy, but your detainees can't. And you can go fuck yourself. You and your Nazi ideas.

Strictly speaking, Fred's ideas about detainee treatment owe more to Stalin's KGB than the Gestapo manual.

I'll bet you consider yourself quite the patriot, eh, Fred?

Posted by sglover | April 10, 2008 4:48 PM

DMIdiot,

Whether the entire Geneva Conventions applies or not, Common Article 3 applies regardless of whatever John Yoo says.

In addition, the Convention Against Tortrue also applies as a strict prohibition against torture.

Posted by Randy Paul | April 10, 2008 5:15 PM

What some of you don't realize is that the John Yoo memo probably saved the lives of terrorist detainees. In the wake of 9/11, before a formal policy was in place, military interrogators weren't given a lot of guidance on how to obtain information from detainees, and their first thought was preventing another 9/11. That's when we had deaths in custody from detainees in Afghanistan; one I believe had been beaten to death (strikes were limited to his legs, but they did enough damage to kill him).

As harsh as the Yoo methods sound, the memo proscribed a lot of harsher and more dangerous interrogation methods. The administration could have saved itself a lot of heat by simply not coming up with a formal policy and letting interrogators do as they saw fit on the QT. That would have also led to a lot more dead detainees. They erred in the safer, more humane direction of constraining interrogation techniques with a formal policy, and they are taking heat for it.

Reality Man,

"Were you raped on camera while you were in basic training?"

Did I advocate rape as an interrogation method, dipshit?

Posted by Fred | April 10, 2008 5:15 PM

DTM -- I think you are overbroad in your interpretation of precisely what the SCT ruled. But, for argument's sake, if the MCA of 2006 was amended to bring it in line with the SCT's holding in Hamdan, then any prosecutions under the Act for "war crimes" committed prior to 2006 would be invalid for due process reasons. You should read our Constitution, prohibiting ex pos facto laws and such.

Game, set, match.

Will some real lawyer step to the plate. I'm tired of arguing with moronic Fred and Stefan and pre-law DTM.

Posted by DTMIDiot | April 10, 2008 5:16 PM

Spies were always executed. That's not an honest argument. For the rank and file POWs, Washington set a policy of enlightenment.
Posted by maxgowan

The point is that Lefties and transnationals are insisting that AQ are POWs, and innocent until proven guilty of violating US civilian criminal law.
The FACTs, going back to Washington, are that AQ and other Islamoids fit in not as bona-fide POWs, but the class of spies, saboteurs, bushwhackers always exempt from POW treatment. And generally, while they are subject to execution if caught, no side in a war considers spies, saboteurs, bushwhackers as war criminals.

***************
By the way, Washington's version of the UCMJ (the Articles of War) also specified that members of the Army would be subject to the jurisdiction of the civilian courts. Again, that remains true today (the military courts do not have exclusive jurisdiction over military personnel).
Posted by DTM

Well, Duh! Just like in most Western Armies, crimes committed in the civilian sphere are tried in the civilian sphere. If you can find instances of Muslim unlawful enemy combatants that are caught shoplifting or abusing their wives, then by all means open your precious civilian courts to try their non-military activities. Just as we do when SGT Jones gets caught off base with a bag of heroin....the civilians get his ass. Caught on duty, deployed in war, or on base with the same heroin, he falls under military jurisdiction and they get his ass.

*********************
PJ - umm, first of all cap weinberger isn't jewish and resents being identified as such. shows how little you know.

umm, cap weinberger is listed in prominent Jewish-Americans in Government. That he did not practice the religion associated with his ethnicity, as many other Jewish-Americans like Barry Goldwater or Jewish-Britons prominent in government also abjured - is just a dodge.

******************
there were many patriotic Jewish-Americans serving either Uncle Sam or the Soviets they had 1st alliegence to.."

oh please. Jewish-Americans, who ran as fast as they could from Mother Russia, did not "serve" in the Red Army.
Your right-wing rank "make it up" anti-semitism grates. Please find another place to peddle your crap.
RWL

Jews fled the Czar. About half from the Pale of Settlement became ardent fans of the Soviet Union as Jews assumed much of the top Bolshevik positions.
Those folks opposed Hitler, then dutifully took the Party Line when the Molotov-Ribbentrop Pact was signed that it was "loyal Jews of Revolution's" duty to oppose American entry into WWII because capitalism and imperialism were worse than the Nazis, by Communist doctrine.
Then of course when Hitler invaded Russia, the calls went out from Soviet leadership to Jewish-Americans and other good communists and progressives abroad to do a 180 and support the US AND the noble Soviets, by NOT seeking to come back and join the Red Army, but the US military instead or to otherwise support the war effort to send war materials to the Soviets and their new dear friends, the British Imperialists.

When Jewish effort lagged, in part due to Jewish_Americans still upset that Stalin had whacked their personal favorite, Lev Bronstein (Trotsky) as well as the whole fighting thing not really being their forte - Stalin made direct appeals through the Soviet Embassy for Jewish Americans to help, not just for Him, but because their comrades in the Pale were dying at Nazi hands...

No make-up. Just the facts. The yo-yoing of Jewish Americans faithful to Marxism and Soviet leadership of their cause to go from Nazis as their main enemy to Brits and other capitalists being the main foe back to the dastardly Nazis again once Barbarossa started - has been covered quite well in Jewish literature and in the newsprints of the time.

************
PJ - once the us entered the war, the draft was mandatory. whatever "volunteers" there were is quite besides the point.

Actually, the Draft started in 1940. It was alsways mandatory, that is why it is called a DRAFT, rather than a "volunteer drive". In WWII, the numbers drafted rose and selectively targeted groups that had low volunteer rates rather than being applied blindly by local boards that know that - say, half the Norweigan-American men of military age volunteered but only 10% of the local Swedish Americans. Rather than hit both populations equally in odds of being drafted, Boards tried making selection based on "fair share".

In certain areas, volunteerism was so high that the remainder were exempt from draft and barred from volunteering - so the local economy would still work. One of my grandfathers had to get on a train to another city to volunteer.

Volunteerism is quite the point. It drove how the Draft was conducted by area. Lots of Flatbush boys drafted, while no Draft was needed in Wyoming because volunteers supplied expected numbers and exceeding numbers would hurt war materials production in Wyoming....or on the Cherokee Reservation...or coal production in Scots-Irish Kentucky Appalachia.

Obviously a Draft would not be needed if there weren't shirkers or those holding back hoping someone else stepped up and did duty so they wouldn't be bothered...

Posted by chris ford | April 10, 2008 5:35 PM

Matthew, the fact that you don't believe Bush and his fellow criminals won't see jail in the U.S.A. speaks volumes about justice in your country. The way, the only way, America will ever begin to recover its good name and wonderful reputation is to put all these criminals behind bars.

If, in fact, this does not happen, then perhaps Americans can at least stop telling the world what a beacon of freedom you are and how democratic your society is. It will ring rather hollow, don't you think?

Posted by Paul Joy | April 10, 2008 5:43 PM

chris -- again, no evidence. for anything.

the men in white suits are coming soon chris. it'll be ok. it'll be ok. it won't hurt at all.

PJ

Posted by PJ | April 10, 2008 5:47 PM

Dear Chris,

I googled you. I know, Google, an invention of the (take your pick -- Communist, Capitalist, Torturing, Terror Loving, "cosmopolitan," elite, Yeshiva-going, Harvard-graduating, and in any case clever) Jews!!!!

Pretty fun to google your name. It brings all of your whack-job posts right to my desktop!!!

My guess is that you're British; if not then certainly redneck. In any case, how did you get obsessed with "Zee Jews"?

Are you one of the idiots in the motor home from the Borat movie?

PJ

Posted by PJ | April 10, 2008 6:08 PM

jackass -- that's not caselaw; that's a statute.

Caselaw is based on interpretation of statute.

secondly, since under no valid interpretation of the geneva conventions would KSM be protected by the GC (b/c he's a terrorist, fighting OUT of uniform), this law doesn't apply to him.

Incorrect. At the very least Khalid Sheikh Muhammed is covered by the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Times of War, which states in Article 4 that (emphases mine) "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." There is no "but he's a terrorist!" exception to the applicability of Fourth Geneva, it simply covers all prisoners of any sort held by an enemy power during wartime.

Second, if we're citing caselaw the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), found that Common Article 3 of the Geneva Conventions applied to prisoners like Hamdan held by US forces under the auspices of the War on Terror.

Common Article 3, so called because it is in all of the Conventions, requires that "Persons taking no active part in the hostilities...including...those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely....To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;....(c) Outrages upon personal dignity, in particular humiliating and degrading treatment...."

Assaulting a prisoner by means of a slap or otherwise is therefore a violation of 3(a) ("violence...to person") and 3(c) ("Outrages upon personal dignity") and as a violation of the Geneva Conventions is therefore also a violation of the War Crimes Statute.

Now, please show me governing caselaw (by cite) that proves your point that assaulting a prisoner for the purpose of interrogation is not a war crime. I won't hold my breath.....

Posted by Stefan | April 10, 2008 6:12 PM

Stefan,

I have no dog in your fight but I think you are taking several leaps of logic. You do need caselaw to see how statutes apply in certain situations, this being one of them.

It is not at all clear that a slap is "violence" or an "outrage" upon personal dignity. That would need to be fleshed out (no pun intended) in caselaw.

Your idea that Article 4 protects terrorists is wrong-headed and ironic. This provision, enacted to protect civilians in wartime, is turned on its head when providing protection to a terrorist whose stated goal is to kill as many civilians as possible. I don't think there is any caselaw out there that interprets Article 4 as you do.

You also, I believe, are missing the "gateway" to Geneva protections -- to wit, that it applies to soldiers fighting in uniform and to civilians in any case but by implication not to guerillas or terrorists fighting out of uniform. The reason for Geneva's protections, in part, was to give an incentive for parties to conflicts to fight "in uniform."

And Hamdan was an American citizen, held on US soil. KSM is not a citizen nor has he been held in the US (as far as we know). Not analagous to Guantanamo.

Again -- no dog in this fight. I haven't done all of my research (I am an attorney). But your reasoning is pretty soft.

SIW

Posted by SIW | April 10, 2008 6:23 PM

But, for argument's sake, if the MCA of 2006 was amended to bring it in line with the SCT's holding in Hamdan, then any prosecutions under the Act for "war crimes" committed prior to 2006 would be invalid for due process reasons. You should read our Constitution, prohibiting ex pos [sic] facto laws and such.

As any lawyer can attest, the above is idiotic nonsense. The prohibition on ex post facto laws means that you cannot punish someone who engaged in behavior in the past when it was not criminal. However, the War Crimes Act and the Geneva Conventions were already valid law in the 2001-2006 period, and thus any violation of them was crimal at the time such acts were committed, and anyone can certainly be prosecuted for such violation. Moreover, the MCA applies only to the use of military commissions to try so-called "unlawful combatants" -- it thus is not on point for what we are discussing here, which is lliability under the War Crimes Act.

By the way, it's ex post facto, not ex pos facto.

Posted by Stefan | April 10, 2008 6:31 PM

"Now, please show me governing caselaw (by cite) that proves your point that assaulting a prisoner for the purpose of interrogation is not a war crime. I won't hold my breath....."

please, don't hold your breath. The point, which you are too damn thick to understand, is that "slapping" is not necessarily assault.

You are also asking me to prove a negative. Have you ever read a legal opinion? they don't prove negatives.

your leaps of logic are legion -- you have nothing to support your assertions that "slapping" is violence or degrading. your reasoning is legally very (extremely) weak. by your counts any coercive interrogation is torture.

I live in NYC, for the sake of my community, I hope Hillary-bama don't share your (shallow) reasoning.

Posted by DTMIdiot | April 10, 2008 6:43 PM

It is not at all clear that a slap is "violence" or an "outrage" upon personal dignity. That would need to be fleshed out (no pun intended) in caselaw.

On the contrary, it is perfectly clear how a slap is violence. A slap is a battery, and hence violence.

Your idea that Article 4 protects terrorists is wrong-headed and ironic. This provision, enacted to protect civilians in wartime, is turned on its head when providing protection to a terrorist whose stated goal is to kill as many civilians as possible. I don't think there is any caselaw out there that interprets Article 4 as you do.

Again, read the simple and clear language of the statute in Article 4: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." It covers all persons who are in any manner prisoners in wartime, regardless of their status.

Article 5 also addreses the issue of prisoners accused of criminal behavior, and makes clear that the Convention also applies to them:

"Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power....In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be."

You also, I believe, are missing the "gateway" to Geneva protections -- to wit, that it applies to soldiers fighting in uniform and to civilians in any case but by implication not to guerillas or terrorists fighting out of uniform. The reason for Geneva's protections, in part, was to give an incentive for parties to conflicts to fight "in uniform."

No, there is no such gateway. As I've demonstrated above, the Geneva Conventions apply to all prisoners held during wartime, regardless of status. Certain categories of prisoners, such as POWs, have enhanced rights, but there is a baseline standard of protection applicable to all prisoners. If you disagree, please cite this so-called "gateway" language and explain how it negates Article 4 of the Fourth Geneva.

Moreover, none of prisoners in question have been found to be terrorists by a court of law. They have merely been accused of such acts, but such acts have never been proved against them.

The reason for Geneva's protections, in part, was to give an incentive for parties to conflicts to fight "in uniform."

No, it was not at all.

And Hamdan was an American citizen, held on US soil. KSM is not a citizen nor has he been held in the US (as far as we know). Not analagous to Guantanamo.

So? That's completely irrelevant as to whether the Geneva Conventions apply to him. Quite the opposite, Article 4 of Fourth Geneva is specifically designed to protect those held by "a Party...of which they are not nationals."

I don't think there is any caselaw out there that interprets Article 4 as you do.

Please cite governing caselaw that interprets Article 4 as you do.

Posted by Stefan | April 10, 2008 6:44 PM

Stefan --

Now you are just making bold assertions -- you're not providing any supporting evidence.

I suggest you take a course in legal reasoning. It is not at all perfectly clear that a slap is violence; it is not at all clear that a slap is "battery" (if it were, how many parents would be prosecuted for child abuse?)

Please read up on the history of the Geneva conventions. You are just categorically wrong in your interpretation of Article 4 -- your interpretation would give terrorists the protection of Article 4. the history of the protocols sought to be added to the GC belies your claims.

And Hamdan IS relevant to the GC -- bc the GC refers to an occupying power. Unless you are a crazy la raza supporter, the US is not an "occupying" power of the USA.

Lastly, the "gateway" to the GC is a determination whether a prisoner is an enemy combatant or not. There is a whole clinic at the Duke Univ Law School devoted to this issue. I suggest you do some basis research on this and why the GC were adopted. Reciprocity in treatment and incentives to fight in uniform were two BASIC reasons. Your "it says what I want it to say" approach simply has no basis in law.

SIW

Posted by SIW | April 10, 2008 6:55 PM

The point, which you are too damn thick to understand, is that "slapping" is not necessarily assault.

Slapping is assault and battery. It is an unlawful touching of another intended to cause fear and/or harm, which is pretty much the textbook definition of the offense.

You are also asking me to prove a negative. Have you ever read a legal opinion? they don't prove negatives.

No, I'm asking you to prove a positive, your positive assertion that slapping is not assault and battery. If this is indeed the case, you should be able to cite copious governing federal caselaw where an assault and battery charge was dismissed on the grounds that striking someone in the face for the purpose of interrogation was not indeed battery.

Posted by Stefan | April 10, 2008 7:02 PM

Dear SIW and Stefan --

I believe Stefan's interpretation of Article 4 is incorrect.

the third GC covers POW's. http://en.wikipedia.org/wiki/Third_Geneva_Convention

POW's must meet certain standards --

Article 4 defines prisoners of war to include:

* 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
* 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
o that of being commanded by a person responsible for his subordinates;
o that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I); [NOTE -- THIS IS THE PROVISION THAT HAS BEEN INTERPRETED AS LIMITING COVERAGE TO THOSE IN "UNIFORM"]
o that of carrying arms openly;
o that of conducting their operations in accordance with the laws and customs of war. [NOTE - THIS MEANS TERRORISTS ARE NOT COVERED]
* 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
* 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
* 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
* 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
* 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.

Posted by GCWarrior | April 10, 2008 7:07 PM

Stefan --

1. oh please. by your reasoning every mother in America would be convicted of assault and battery.

2. " You are also asking me to prove a negative. Have you ever read a legal opinion? they don't prove negatives.

No, I'm asking you to prove a positive, your positive assertion that slapping is not assault.."

Idiot -- "slapping is NOT assault" is a NEGATIVE assertion. shall i spell it out for you -- NOT = NEGATIVE.

On the other hand, a POSITIVE ASSERTION is something like "Slapping IS assault."

So please provide me caselaw that slapping is, in each and every case, assault. You can't, 'cause there is none.

SIW

Posted by SIW | April 10, 2008 7:14 PM

Now you are just making bold assertions -- you're not providing any supporting evidence.

No, that's what you're doing. I'm providing cites and quotes.

I suggest you take a course in legal reasoning. It is not at all perfectly clear that a slap is violence; it is not at all clear that a slap is "battery" (

No, it's perfectly clear. Otherwise please explain how it's not.

Please read up on the history of the Geneva conventions. You are just categorically wrong in your interpretation of Article 4 -- your interpretation would give terrorists the protection of Article 4. the history of the protocols sought to be added to the GC belies your claims.

Again, there is no "but he's a terrorist" exception. If you disagree, please cite it. The plain language of 4 as I've cited before makes clear it applies to any person held as a prisoner. Morever, we're only holding people accused of being terrorists -- no one we're holding in Guantanamo has been proven to be a terrorist by a court of law. And as I've demonstrated, Article 5 specifically applies to spies, saboteurs, and other accused lawbreakers, which category would include accused terrorists.

And Hamdan IS relevant to the GC -- bc the GC refers to an occupying power. Unless you are a crazy la raza supporter, the US is not an "occupying" power of the USA.

The US is an occupying power in Iraq and Afghanistan. However, the GC also refers to parties to a wartime conflict, which the US certainly is. The Convention applies (Fourth Geneva, Article 1) in "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof." The US, Pakistan, Iraq, Afghanistan, Cuba, etc. are all parties to the Geneva Conventions and they apply to any conflict in any of those terrorities.

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Lastly, the "gateway" to the GC is a determination whether a prisoner is an enemy combatant or not. There is a whole clinic at the Duke Univ Law School devoted to this issue.

Again, despite your handflapping assertions there is no such "gateway." I've asked you to provide a cite proving this but you've failed to do so.

Your "it says what I want it to say" approach simply has no basis in law.

Noted without comment. Enjoy the irony.

Posted by Stefan | April 10, 2008 7:14 PM

I believe Stefan's interpretation of Article 4 is incorrect. the third GC covers POW's.

You are confused and/or misread. I was discussing Article 4 of the Fourth Geneva Convention, which covers all prisoners, regardless of status. The Third does indeed define the status of POWs, but civilian prisoners (including accused terrorists) are covered by the Fourth, not the Third.

Posted by Stefan | April 10, 2008 7:20 PM

Stefan --

All due respect, it is you who are confused. Why would the Geneva Conventions limit the definition (and hence protections) of POW status in one section only to expand it in another -- indeed, in your reasoning, to expand it to cover people specifically excluded by the POW definition?

Doesn't make much sense. Basic legal reasoning is that treaties must be read in a way that all sections are consistent with each other.

GCW

ps -- I think by "gateway" SIW is trying to say that the "gateway" is the determination as to whether someone meets the definition of a POW under the GC; this is a key point of Professor Morris' work at Duke.

Posted by GC Warrior | April 10, 2008 7:28 PM

Two practical considerations

It is unlikely that our war criminals would be pursued by foreign courts. German and Japanese war criminals from WWII, of course, were uniquely available to international tribunals because those countries were occupied by Allied armies, a circumstance that does not seem likely for our near future. More recent examples of national leaders pursued by foreign tribunals, folks like Pinochet or Milosevich, came from countries that can be pushed around with relative ease, also a circumstance that doesn't apply to the US.

It would require pushing around for a foreign country, or international body, to pursue our official criminals, because no US administration could sit still for such without paying a stiff price, politically as well as pragmatically. However sympathetic to the prosecution, and unsympathetic to our official criminals, a future US administration might be, and even if it were willing to risk the electorate not sharing these sentiments enough that handing over former US govt officials to foreign courts wouldn't exact a steep political price, would still be left with the insurmountable practical difficulties involved with letting foreign prosecutors root around the US govt for the evidence necessary to secure a conviction. Yes, 99.9% of the concerns over national security that people express are bogus, and this circumstance would be no different, but there is that residue of legitimate concern, however small, that would make it not a good idea to have foreigners do what should be done anyway by US prosecutors and US courts. I just can't see an administration willing to hand over our official criminals for foreign prosecution, that wouldn't be willing to pay the smaller political costs involved with just doing it right, and prosecuting these folks ourselves.

No, and as the second practical consideration, pardons wouldn't make such domestic prosecution impossible. The fact that no one challenged the Nixon and Iran-Contra pardons in court did not at all give them any legal force as any sort of precedent, and the so-called pardons that would be necessary to protect BushCo after their offical immunity runs out on 1/20/09 would be even more legally dubious. My understanding is that there is no statute or case law that has ever dealt with blanket or pre-pardons, and some case law suggesting that both these features do not fit what the courts think of as pardon.

The most basic problem with blanket, pre-pardons (pardons for crimes not even under investigation, much less prosecution), is that they aren't really pardons. You can call it "pardon" all you want, and if you're the president you have to call it a "pardon", because that's what the Constitution lets you hand out, but a blanket pre-pardon is really lifetime immunity, which the Constitution doesn't give anybody the power to hand out. The Constitution itself confers official immunity on the president, VP and members of Congress, but that runs out when they leave office. A blanket pre-pardon seems to me, and I don't see why it would not seem the same way to any court asked to look at the matter, to be simply a back-door way to extend the president's official immunity past the bounds set for it in the Constitution, both in the sense of extending the time of his own immunity to forever, and extending this lifetime offical immunity to whatever of his henchpersons he chooses, despite the fact that the Constitution did not see fit to extend official immunity of any duration to such henchpersons. It's immunity, and simply calling it a pardon doesn't give a president the extra-Constitutional power to grant lifetime immunity.

The second problem with Dubya pardoning his way out of his legal liabilities is that to do so would facilitate the crimes themselves for which he would be in legal trouble, and even otherwise legitimate acts done to further a crime can be themselves thus rendered criminal, and potentially voidable on that basis. If the president, for example, were to use his control of the executive branch to have one of the original copies of the Constitution handed over to Rupert Murdoch in exchange for a hefty bribe, Dubya wouldn't be allowed to keep the bribe, Murdoch wouldn't be allowed to keep the copy of the Constitution, and they would both go to jail for bribery to boot. This would remain so even if there was nothing inherently illegal about the mechanics of the handovers involved in this transaction. Just so, were the president to pardon himself in order to make his own criminal wrong-doing risk free, or to buy the silence of co-conspirators by giving them pardons, both of these actions would, because they were done to further a criminal conspiracy, lose their official character, and thus become potentially reversible.

Of course, BushCo has packed the courts, and the SC that gave us the travesty that was Bush v Gore might perhaps see even what is clear to reasonable and unbiased people through a strongly red-tinted lens. But this is where the self-pardon aspect of Dubya pardoning himself, and the hundreds of his minions he would presumably also pardon, would get him into trouble. Nixon didn't dare pardon himself, but instead arranged for Ford to do so, because he understood that a self-pardon would not be politically sustainable. If Dubya were to give himself and his minions blanket pre-pardons, that would be so transparent an admission of guilt, and so flagrant a misuse of his office to protect himself from the just consequences of his crimes, that it would make politically possible any judicial impeachments or Congressional pre-emptions of jurisdiction in this matter that it would take to prevent packed courts from frustrating justice.

Posted by Glen Tomkins | April 10, 2008 7:57 PM

GC Warrior,

That is exactly the structure of the Geneva Conventions: the Third Geneva Convention is explicitly about the treatment of POWs. The Fourth Geneva Convention is explicitly about the treatment of civilians, not POWs. And to make this even more confusing, Common Article 3 is not limited to any particular Convention (that is the meaning of the "Common" in "Common Article"), and therefore applies to any class of person.

Unfortunately, it is a common misconception that the Geneva Conventions are only about POWs. But that is incorrect.

DTMIdiot,

Your ex post facto question was already answered by another poster, so I will pose a (more interesting) ex post facto question.

The MCA of 2006 not only amended the War Crimes Act, but also granted retroactive immunity for certain actions that would have been war crimes under the original Act. Now, suppose that in the future, Congress repeals the MCA of 2006, including the retroactive immunity provisions, and re-establishes the original War Crimes Act.

Under the ex post facto doctrine, obviously people could not be prosecuted under the original War Crimes Act for actions taken between the passage of the MCA of 2006 and its repeal. But how about for actions taken before the passage of the MCA of 2006? Does the ex post facto doctrine now prevent prosecutions under the original War Crimes Act for actions from that period, even though the retroactive immunity has been repealed?

See if you can figure it out.

Posted by DTM | April 10, 2008 8:04 PM

I dunno. My boys are in the bathtube at this moment. I've got to mix the enzymes, supplements, cool miracle stuff, in surprisingly tasty cod liver oil, for my one with the special needs. The alternative route really, really works. Wife out with cousin to a movie; we boyz ate a light dinner together. Will have an after dinner drink and put on the Dead, Van, Neil, Feist, Miles and/or Mark & Emmylou. Up at 6:30, drive the choir boys to school early; big contentous meetings later in the day.

Some good stuff here (although a war criminal is a war criminal is a war criminal; see them all in Hell), although one cannot help but think of that great William Shatner skit on SNL, the Star Treck convention. "Get a life . . . move out of your parents' basement. YOU - have you ever kissed a girl?!? . . . Oh, that was the evil Captain Kirk in Episode 212 . . ."

Posted by maxgowan | April 10, 2008 8:21 PM

I don’t really see anything odd about the Bush deadenders defending torture. You’ll notice, they all cluster around things like “slapping” – the classic defense of the wife beater. I only gave her a slapping. She must have broke her jaw herself. The butcher of the gay guy, the lyncher, the suburban bully. The psychosis that combines a robust defense of the Confederacy, a floating and weird racism, with the notion that torture against ‘terrorists’ (by which, of course, they don’t mean neo-Nazi militias that might blow up the random courthouse – those are patriots!) is fine and normal, “just like they did to me in the army”. I’d suggest that the latter, while plainly a lie, does perhaps reflect some echo of earlier child abuse which this crowd is escaping – is at the center of deadender psychology. It is an interesting mix – the masochistic fantasy of being a victim, and the sadistic fantasy of “giving it” to the terrorists. Their willingness to offer stories in which they crawled, licked boots, were sleep deprived, were waterboarded conveys a deep seated need for the satisfaction of being punished for being a “bad boy”, which is why they rush to the tyrant figure, the leader, why they are so utterly and oddly servile even as they fantasize about crushing the big scary Other. Thus, the playful slap across the jaw of the wife, the child, anything weaker, anything in their power – and the explanations to the neighbors for the bruises. The Bush administration is more than an aberration from the standards of the Republic, more, even, than the laughable result of letting moronic mythologizers get anywhere near the levers of power – it is a syndrome.

Posted by roger | April 10, 2008 8:24 PM

Why would the Geneva Conventions limit the definition (and hence protections) of POW status in one section only to expand it in another -- indeed, in your reasoning, to expand it to cover people specifically excluded by the POW definition?

As DTM explains above, the confusion is yours. They don't limit it in one section and expand it in another. Rather, the Third Geneva Convention lays out the definition of POW status and the attendant protections. The Fourth Geneva Convention, which is a related but separate treaty, lays out the protections attendant on civilian, that is, non-POW, prisoners. Prisoners who do not qualify as POWs and therefore are not covered by the Third Convention are nevertheless covered by the Fourth Convention.

Basic legal reasoning is that treaties must be read in a way that all sections are consistent with each other.

They are all consistent with each other. Read them both again. But more carefully this time.

Posted by Stefan | April 10, 2008 9:15 PM

I think by "gateway" SIW is trying to say that the "gateway" is the determination as to whether someone meets the definition of a POW under the GC; this is a key point of Professor Morris' work at Duke.

That only applies to the Third Geneva Convention. The Fourth Geneva Convention applies to both POW and non-POW prisoners of any sort, and thereby any "gateway" is irrelevant. I don't know why this seems to be that hard to comprehend, but I can use smaller words and simpler sentences if that helps.

Posted by Stefan | April 10, 2008 9:19 PM

Idiot -- "slapping is NOT assault" is a NEGATIVE assertion. shall i spell it out for you -- NOT = NEGATIVE.

No, it's a positive assertion, as you're making a statement of fact. You're saying slapping is not assault (and battery, you seem to be confused about those terms). Here's how you can prove it: look up the legal definition of assault and battery and provide it. Then, explain how armed agents of the state striking a helpless and restrained prisoner in the face for the purpose of inducing pain and fear so that he cooperates with their interrogation of him does not fit that definition.

Posted by Stefan | April 10, 2008 9:24 PM

Tompkins - My understanding is that there is no statute or case law that has ever dealt with blanket or pre-pardons, and some case law suggesting that both these features do not fit what the courts think of as pardon.

From the earliest thoughts of the Founders, the idea of the pardon was advanced as most valuable not as something used after a criminal conviction, but useful tool to restore the social traquility by a blanket pardoning after a rebellion or insurrection had been defeated - (See Shays Rebellion). Rather than draw out the societal hostilities for months or years while cases plodded through courts, while men planned to be pardoned anyways were ruined through legal expenses and languishing in jail....

No less estimable Founding Father than Alexander Hamilton, writing in Federalist No. 74, suggests that, "... in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.

The matter was debated at the Constitutional Convention.

At the Constitutional Convention of 1787, delegates easily defeated proposals to make presidential pardons subject to the approval of the Senate, and to limit pardons to persons actually convicted of crimes.

Proposals for constitutional amendments limiting the president's pardoning power have been offered in Congress. They recognize that simple law or a majority of lawyers dressed in robes stripping or limiting Presidential pardoning power by judicial fiat or legislative statute would be Unconstitutional.
Self pardoning has been declared as exceeding the intent. A few govenors have floated proposals as they faced corruption charges and been told it was a no-go because it would put the grantor of the pardoning power above the law.

**********************
Stefan has become so ensnared in word-parsing that he has come up with theory totally at odds with both the liberal and conservative interpretation of GC. His insistance that slapping, and by extension of his "unwanted touching" criteria to a shove or push constituting a war crime is not just ridiculous, but a sign how snarled up he got in his incrrect reading of the Conventions that he is lost in the ozone fog he inflicted on himself.

Geneva was based on certain basic things that should not get lost in misreading or over-emphasizing phrases and statutes to the point where one concludes that a party that does not contract to the Geneva Conventions, follows no rules of conduct for combatants, and deliberately seeks out civilians of the enemy rather than soldiers as targets - has higher rights than innocent civilians or armed forces and nations in compliance with the Treaty.

The Basics:

1. It was realized that both sides had to comply with Geneva or the side that disregarded its requirements would have the advantage. Therefore, to benefit from it, you have to sign up agreeing to follow it and grant reciprocity, or you are outside the Convention.

2. Soldiers have to follow strict rules that serve to endanger them and hinder them, with uniforms marking them as legitimate targets and restrictions on force that might make their risk lower. In return, they are excused from civilian laws that do not apply when war and the laws of war supplant civvie law.

3. As much as possible, civilians shall be spared and never purposely targeted.

Give terrorists all the rights and you introduce perverse incentives for all combatants to act more like Al Qaeda and less like Canadians.

Posted by chris ford | April 10, 2008 9:25 PM

Chris Ford,

By "blanket pardons", I meant a pardon for any and every crime imagineable that an individual might have committed, not the mass pardons, or pardons (really offers of pardons) of many different people in one act (often called an amnesty) that were discussed at the Convention, in the Federalist Papers and which have actually occurred in our history (as in the pardon of former Confederates by President Johnson). We never had blanket pardons before the Nixon pardon, which was not tested in the courts. The Federalist Papers, and any records of debate that survive from the Convention, do not talk about blanket pardons for the simple reason that such a thing is not a pardon, but is really what the founders meant by immunity, and they generally avoided being befuddled by confusion over the simple meanings of words, even if they arguably didn't always resolve substantive matters wisely.

Posted by Glen Tomkins | April 10, 2008 10:08 PM

"Did I advocate rape as an interrogation method, dipshit?

Posted by Fred | April 10, 2008 5:15 PM"

It's what you get when you authorize torture. Conservatives always talk about the unintended consequences of government action. Torture gives the state more power than just about anything else over the individual. You want torture, you have to accept the rape as well.

Posted by Reality Man | April 10, 2008 10:29 PM

Stefan --

It is patently false that those not considered POWs in the Third Convention are accorded protections due civilians in the Fourth. That is absolutely not the American interpretation of the treaty and it turns the treaty on its head. It is not the case that the treaty applies to everyone -- that everyone fits either into the POW or civilian category. That is your mistake and DTM's mistake, not mine.

Your's may be Norway's or Sweden's or Palau's intrepretation of the treaty but it is not the American interpretation.

So the "gateway" applies.

SIW

ps -- it is irrelevant whether "slapping is NOT assault" is a "statement of fact." Actually, moron, it's not a statement of fact at all; it's a statement of law. A statement of fact is "SIW bitch slapped Stefan". You can prove that. YOu can't prove that SIW did NOT bitch slap Stefan. that's proving a negative. Likewise, you can't prove that slapping is NOT assault, as that's proving a negative. You can prove, in a positive way, that the elements of assault and battery are met in a particular case of slapping. And that was my point. You need caselaw to interpret the language in treaties. That's. Basic. Legal. Reasoning.

Posted by SIW | April 10, 2008 10:56 PM

Stefan -- we may disagree but -- all petty insults aside, it's pretty clear you are a decent person. Unfortunately, given that I find myself on your opposite side, that may be considered the same side as the odious Chris Ford. His bigoted, anti-semitic stench is so great around here, I may be forced to find more normal human beings on your side of the fence.

Have a good night.

SIW

Posted by SIW | April 10, 2008 11:04 PM

His bigoted, anti-semitic stench is so great around here, I may be forced to find more normal human beings on your side of the fence.
Have a good night.
SIW

Everything I said is factual. If the truth hurts, too bad for you. But basically, the cultural time is at an end where already powerful, influential groups can play the "victim card" and demand immunity from criticism as they grasp for more wealth, power, influence. That doesn't fly with bars on criticizing WASPs, wealthy Muslims, influential Cuban-Americans dictating Cuba policy, Wall Street, ethnic promotion groups like La Raza, other religious minorities like Fundies, Black Liberation preachers, Mormons.

Welcome to the rest of America, Jews.

Like blacks milking slavery as excusing all problems , Jews milking "ancient persecution/WWII" as putting Jews and blacks above criticism has a shelf life. It is now expiring as racism! anti-semitism! as means of avoiding accountability has been used too often, and too long.

Posted by Chris Ford | April 11, 2008 12:36 AM

Like blacks milking slavery as excusing all problems , Jews milking "ancient persecution/WWII" as putting Jews and blacks above criticism has a shelf life. It is now expiring as racism!

And who's claiming that? Besides, what's the need for using a collectivist approach? Do you accept collectivism or not?

I don't. It's the individual that matters. There's neither amelioration nor exoneration by curse or virtue of in-born group affiliation that I know of.

Posted by MarkG | April 11, 2008 12:55 AM

Reality Man,

"It's what you get when you authorize torture. Conservatives always talk about the unintended consequences of government action. Torture gives the state more power than just about anything else over the individual. You want torture, you have to accept the rape as well."

This is spurious. First, no one authorized "torture": specific interrogation methods were authorized. Second, authorizing specific interrogation methods (such as sleep deprivation and stress positions) in no way means "you have to accept" any unauthorized treatment. Just as allowing drill sergeants to use sleep deprivation and stress positions on recruits doesn't mean you have to accept any unauthorized treatment of recruits. The whole point of specifying certain acceptable methods of interrogation (or certain acceptable methods of training) is to make it explicit than anything else is impermissible.

This policy is in contrast, as I pointed out before, to the previous policy where interrogators were encouraged to be zealous but weren't given a list of specific authorized interrogation methods. That previous policy (or lack of a policy, if you prefer) led to the deaths of detainees in Afghanistan before the John Yoo memo. Again, the John Yoo memo probably saved the lives of future detainees by limiting interrogation techniques to safer ones.

Posted by Fred | April 11, 2008 1:19 AM

Fred is, next to Al, probably the dumbest asshole on this blog.

Now he's claiming that Yoo's memo saved lives by telling our troops only to "torture a little bit."

You can't make this stuff up, folks.

Everybody in that room where "harsh interrogations" were discussed should be arrested, frog marched into a Federal holding cell, charged, tried, convicted, and executed as war criminals.

Everybody in that room.

As Ashcroft said in that room, "History will not look kindly on this."

Posted by Richard Steven Hack | April 11, 2008 4:53 AM

Yes, we have a winner in the Certified Jew-Hater category. C'mon down and claim your valuable prize!

Posted by maxgowan | April 11, 2008 7:26 AM

It is patently false that those not considered POWs in the Third Convention are accorded protections due civilians in the Fourth. That is absolutely not the American interpretation of the treaty and it turns the treaty on its head. It is not the case that the treaty applies to everyone -- that everyone fits either into the POW or civilian category. That is your mistake and DTM's mistake, not mine.

No, it is patently correct. All you offer are unsourced assertions that "it ain't so because I say it ain't so!" while I point to the clear unambiguous language of the treaty itself, which makes clear in Article 4 the persons covered: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

Now, since you seem to have trouble reading English let's take this slowly. Is an accused al Qaeda terrorist, let's say Khalid Sheikh Mohammed, a person? Yes. Is he at a given moment and in any manner in the hands of a Party of which he is a not a national? Yes, he is in the hands of US forces and is not an American himself. Is this during a conflict or occupation? Yes, according to the US government the conflict is the War on Terror (TM). How then would the Fourth Convention not apply to him?

Moreover, despite the Bush regime's claims there is no special "American" reading of the treaty which somehow exempts America and non one else from its clear and straightforward meaning. There is a commonly understood plain English interpretation of the treaty which the US as a signatory to such is bound to. But again, if you disagree please point to the specific language in the treaty which would support your reading.

Posted by Stefan | April 11, 2008 10:10 AM

Likewise, you can't prove that slapping is NOT assault, as that's proving a negative. You can prove, in a positive way, that the elements of assault and battery are met in a particular case of slapping. You need caselaw to interpret the language in treaties. That's. Basic. Legal. Reasoning.

You seem confused as to what the phrase proving a negative means: it means asserting that a proposition is true just because it has not been demonstrated to be false, as you were asserting that a proposition -- in this case, "slapping is not assault" -- was true simply because no one had provent that it was false.

You can prove, in a positive way, that the elements of assault and battery are met in a particular case of slapping. And that was my point.

No, that was my point. I was the one who asserted that the elements of assault and battery were met by slapping. You were the one who asserted that they were not. I therefore asked you to demonstrate in what manner a case of slapping during an interrogation by state agents of a helpless prisoner could not somehow involve the elements of assault and battery, a demonstration you have failed to offer.

You need caselaw to interpret the language in treaties. That's. Basic. Legal. Reasoning.

No, you do not need caselaw. Caselaw can help clarify and interpret in case of a dispute, but a treaty or any contract can and is supposed to be read on its face. That is. Basic. Legal. Reasoning.

Posted by Stefan | April 11, 2008 10:20 AM

It is patently false that those not considered POWs in the Third Convention are accorded protections due civilians in the Fourth. That is absolutely not the American interpretation of the treaty and it turns the treaty on its head. It is not the case that the treaty applies to everyone -- that everyone fits either into the POW or civilian category. That is your mistake and DTM's mistake, not mine.

Actually this has been settled. The Supreme Court in Hamdan ruled that at a minimum Common Article 3 of the Geneva Conventions apply to American prisoners in the War on Terror (TM). Therefore the binding law American interpretation of the treaty is that at the very least Article 3 of the Fourth Convention applies, and this Article covers:

"Persons taking no active part in the hostilities" who "shall in all circumstances be treated humanely" and therefore "the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;...[and]
(c) Outrages upon personal dignity, in particular humiliating and degrading treatment...."

Posted by Stefan | April 11, 2008 10:36 AM

Stefan,

You're doing 1/2 the work. Nice cite to Hamdan but you have yet to show how "slapping" meets either (a) or (c)...

and without caselaw to direct you, a judge (or panel of judges) can get into a argument about whether slapping meets (a) or (c)....whereupon they will cite caselaw to prove their point.

That. is. basic. lawyering.

btw -- you're wrong on Third v. Fourth.

Posted by Get a Life | April 11, 2008 12:04 PM

"You seem confused as to what the phrase proving a negative means: it means asserting that a proposition is true just because it has not been demonstrated to be false, as you were asserting that a proposition -- in this case, "slapping is not assault" -- was true simply because no one had provent that it was false."

Dillweed - the phrase -- "you can't prove a negative" cannot possible mean "asserting that a proposition is true..."

You. Cannot. Prove. A. Negative.

read that...slowly. Cannot? Prove? cannot, non-native english speaker, explicitly means that one is NOT asserting the truth of a proposition.

eg, "SIW bitch slapped Stefan" -- a positive assertion. SIW did something. It can be proven by circumstantial evidence or direct evidence.

"SIW did NOT bitch slap Stefan --- a negative assertion. I can't PROVE (eg, back up a truthful assertion) that I didn't bitch slap you. I'm not trying to PROVE anything.

I hope this helps you Stefan.

Posted by SIW | April 11, 2008 12:15 PM

Stefan -- you wrote -- Therefore the binding law American interpretation of the treaty is that at the very least Article 3 of the Fourth Convention applies, and this Article covers:

"Persons taking no active part in the hostilities" who "shall in all circumstances be treated humanely"

Are you honestly asserting that KSM was "taking no active part in the hostilities"?

hahahahahh. there's not a court in the world that would buy that specious BS.

Nice try.

Please, please, please. Let's get a real lawyer to step up to the plate.

Posted by SIW | April 11, 2008 12:19 PM

"Persons taking no active part in the hostilities" who "shall in all circumstances be treated humanely" Are you honestly asserting that KSM was "taking no active part in the hostilities"?

You have to learn to read better. "Persons taking no active part in hostilities" includes persons who were taking part in hostilities but are no longer because they are now held prisoner. Khalid Sheikh Mohammed is held captive by US forces, thereby he is no longer taking an active part in fighting. Here, I'll bold the language so you can follow it:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

Posted by Stefan | April 11, 2008 2:09 PM

"Persons taking no active part in the hostilities" who "shall in all circumstances be treated humanely" Are you honestly asserting that KSM was "taking no active part in the hostilities"?

You have to learn to read better. "Persons taking no active part in hostilities" includes persons who were taking part in hostilities but are no longer because they are now held prisoner. Khalid Sheikh Mohammed is held captive by US forces, thereby he is no longer taking an active part in fighting. Here, I'll bold the language so you can follow it:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

Posted by Stefan | April 11, 2008 2:10 PM

Dillweed - the phrase -- "you can't prove a negative" cannot possible mean "asserting that a proposition is true..."

Yes, that is precisely the meaning. It's not my fault that you don't understand English (or logic) that well.

You. Cannot. Prove. A. Negative. read that...slowly. Cannot? Prove? cannot, non-native english speaker, explicitly means that one is NOT asserting the truth of a proposition.

Look, you're not that bright, so I'll explain simply: you are not being asked to prove a negative, you are being asked to prove a positive. However, even beyond that your statement that you cannot prove a negative is simply false. It appears to be correct, for example, if you say “I think God exists” and I say “God doesn't exist,” then it's going to be tough for me to prove there isn’t a God. However, this actually depends on the type of the negative statement being made. Merely because the word "not" is in there doesn't mean that it's dispositive. Here are some negative statements:

Two is not equal to three.
The letter A is not the same as the letter B.
French is not the native language of China.
Washington DC is not the capital of Germany.
Wild herds of carnivorous zombie monkeys do not roam through Norway.

Are the above negative assertions? Yes. Can they also be proven? Again, yes.

Posted by Stefan | April 11, 2008 2:30 PM

Stefan --

It is you who need to learn to read.

"Persons...including members of the armed forces who have laid down their arms and those placed hors de combat by ...detention...."

"those" means "those" "members of armed forces".

KSM was not a member of an armed force.

Sorry.

Wrong again.

Game.

Set.

Match.

Real attorneys please step up!!!!

Posted by SIW | April 11, 2008 2:33 PM

Stefan --

I can read wikipedia as well.

Look -- I'm not talking about proving divine existence.

So let's play this simple game, dumbass...

you and i are sitting in a room. we are the only ones in the room. you come out, beaten senseless. there are marks on your bloody face.
you say "he beat me." circumstantial evidence proves it.

you and i are sitting in a room. we are the only ones in the room. this time, i don't beat you senseless. you come out -- an hour later, no marks or signs of a beating -- and say, "he slapped me."
how can I "prove" that it didn't happen?

let me know. I'm waiting.

Posted by SIW | April 11, 2008 2:41 PM

Stefan -- It is you who need to learn to read. "Persons...including members of the armed forces who have laid down their arms and those placed hors de combat by ...detention...." "those" means "those" "members of armed forces".KSM was not a member of an armed force.

No, "persons" includes "members of armed forces" and any others. See the words "including" and "and" in there? In English, "and" generally means an addition. "Bob and John" means both Bob and John. The word "including" also indicates that it covers all persons, "including" but not limited to members of the armed forces.

Similarly, in this sentence "Persons taking no active part in the hostilities," includes "members of armed forces who have laid down their arms" AND "those placed hors de combat by by sickness, wounds, detention, or any other cause...." whether or not they are members of armed forces or not. ("Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria").

Maybe you'll understand if I make it simpler: "Vegetables include carrots and members of the cabbage family." Does that mean that only carrots and nothing else are vegetables? No, it dose not.

Sorry. Wrong again. Game. Set. Match.
Real attorneys please step up!!!!

Heh. I find your wholly-unwarranted self-confidence amusing. You have the macho bravado of the male Chihuaha assuring the female pit bull not to worry because he'll be gentle.

Posted by Stefan | April 11, 2008 2:48 PM

Oddly, while Al links to that ABC story about the DoJ aide who "subjected himself to waterboarding", he doesn't mention its actual contents:

"After the experience, Levin told White House officials that even though he knew he wouldn't die, he found the experience terrifying and thought that it clearly simulated drowning.

"Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use."

(ABC adds that Levin was fired by Gonzales when he became Attorney General.)

Posted by Bruce Moomaw | April 11, 2008 2:53 PM

you and i are sitting in a room. we are the only ones in the room. this time, i don't beat you senseless. you come out -- an hour later, no marks or signs of a beating -- and say, "he slapped me."
how can I "prove" that it didn't happen?

You can't, but your example is beside the point of what you are being asked to prove. You are asserting that a slap is not an assault and battery. If you wanted to prove that, there's a very simple way for you to do it: cite for us the elements of assault and battery (for example, under the common law it's an unlawful application of force to another's person resulting in either bodily injury and/or an offensive touching)
and demonstrate using simple English how striking someone in the face against their will does not meet those elements. If I'd said, for example, that writing a bad check is assault and battery, you could very simply prove I was wrong by demonstrating that by writing a check I was not engaged in a use of force to another's person resulting in either bodily injury or an offensive touching. If your assertion is correct, you should be able to do the same.

Posted by Stefan | April 11, 2008 2:56 PM

btw -- you're wrong on Third v. Fourth.

While "you're wrong" is surely a compelling argument on the playground, I'm afraid I'm going to have to ask for more than simple unsupported assertion. Care to back up your claim with cites to the actual language of the Conventions? Perhaps some caselaw demonstrating your point? Perhaps you'd like to consult the authoritative Commentary to the Geneva Conventions by the International Committe of the Red Cross? (Which commentary states that all prisoners fall under either the Third or Fourth Convetion: "nobody in enemy hands can fall outside of the law"). Because "nyah nyah no it ain't cuz I says so" is really failing to convince me....

Posted by Stefan | April 11, 2008 3:03 PM

Stefan,

you're tiresome. but most of all irksome. The Red Cross interpretation of the Geneva Conventions is quite different from that understood by American courts. for instance, Protocol I is accepted by the IRC as part of the conventions. The US never has signed protocol I.

Now are you going to tell me we're bound by something we never signed?

Posted by SIW | April 11, 2008 3:17 PM

As long as we're discussing caselaw again, see, e.g. Celebici Judgment, para. 271 (1998) issued by The International Criminal Tribunal for the Former Yugoslavia, which prosecuted war crimes committed during the Bosnian conflict. The Tribunal explicitly affirmed that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its Article 4 requirements [i.e. defining who is a protected person] are satisfied." Celebici Judgment, para. 271 (1998).

http://www.un.org/icty/celebici/trialc2/judgement/index.htm

Posted by Stefan | April 11, 2008 3:18 PM

Stefan,

you're tiresome. but most of all irksome. The Red Cross interpretation of the Geneva Conventions is quite different from that understood by American courts. for instance, Protocol I is accepted by the IRC as part of the conventions. The US never has signed protocol I.

Now are you going to tell me we're bound by something we never signed?

Posted by SIW | April 11, 2008 3:22 PM

Stefan,

you're tiresome. but most of all irksome. The Red Cross interpretation of the Geneva Conventions is quite different from that understood by American courts. for instance, Protocol I is accepted by the IRC as part of the conventions. The US never has signed protocol I.

Now are you going to tell me we're bound by something we never signed?

Posted by SIW | April 11, 2008 3:28 PM

Stefan -- amazing that it's taken you this long to cite Celebici. Let's just say from someone who practices that this is very controversial and not at all accepted by American courts.

Posted by SIW | April 11, 2008 3:33 PM

Now are you going to tell me we're bound by something we never signed?

Did I tell you that? No, I don't believe I did. But beat that strawman! Beat him good!

We signed the Third and Fourth Conventions. We are bound by the Third and Fourth Conventions.

amazing that it's taken you this long to cite Celebici.

Someone had to, since I'm the only one here citing cases and the language of the Conventions.

Let's just say from someone who practices that this is very controversial and not at all accepted by American courts.

No, I'm afraid I won't take the unsupported "let's just say" anymore. I'm going to need some cites, caselaw, commentary, some kind of evidence to back up your position. What exactly is controversial about it? Why? On what basis of language in the Conventions do American courts (supposedly) not support this? (And remember, the Supreme Court has already stated that Common Article 3 does apply).

Posted by Stefan | April 11, 2008 3:52 PM

Let's just say from someone who practices that this is very controversial and not at all accepted by American courts.

Can we at least drop this sad and ridiculous pretense that you're even an attorney, much less one who knows anything at all about international human rights law? I mean, the fact that you're unable to accurately interpret an "including....and" clause in a sentence is bad enough, but really, who do you think you're fooling?

Posted by Stefan | April 11, 2008 4:33 PM

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