an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Center for Constitutional Rights has released a sobering report based on interviews and statements by Guantanamo Bay detainees. The information, originally obtained from secret notes of interviews with habeas counsel, was later cleared by a Defense Department review and corroborated by public and unclassified sources. The report offers chilling accounts of prisoner mistreatment and states that detainees at Guantanamo have been
held in solitary confinement for periods exceeding a year;
deprived of sleep for days and weeks and, in at least one case, months;
exposed to prolonged temperature extremes;
threatened with transfer to a foreign country, for torture;
tortured in foreign countries or at U.S. military bases abroad before transfer to Guantanamo;
sexually harassed and raped or threatened with rape;
deprived of medical treatment for serious conditions, or allowed treatment only on the condition that they "?cooperate"? with interrogators; and
routinely "?short-shackled"? (wrists and ankles bound together and to the floor) for hours and even days during interrogations.
This report suggests why, in the wake of Hamdan, the Bush Administration is doing everything it can to limit its liability and the liability of U.S. personnel under Common Article 3. There is little doubt that if the report is accurate, the type of conduct described in it violates Common Article 3 and, by extension, the War Crimes Act. Hence in the wake of Hamdan, which held that Common Article 3 applies to the Guantanamo detainees, the Bush Administration is seeking Congressional approval for new rules that would abandon elements of Common Article 3 and, in effect, modify the War Crimes Act. In other words, the Administration believes that the appropriate remedy for violations of basic standards of decency and humanity is not to punish the wrongdoers but to make the conduct legal after the fact.
Although the Bush Administration tries to insist, in the words of Tony Snow, that "humane treatment has always been the standard" at Guantanamo Bay and elsewhere, the Administration would not be trying so hard to wiggle out of the legal requirements of Hamdan-- or asking Congress to pass new laws overruling the effect of Common Article 3-- if that were really the case. Apparently the Administration's definition of "humane" is so far below the minimum standards that civilized nations have set that it must excuse itself even from those minimum standards. What does this fact say about our claim to be a civilized nation? Does the Administration even care?
The widespread nature of the activities described in the CCR report belies the claim that prisoner mistreatment at Guantanamo Bay was the product of a few isolated individuals. Indeed, what the CCR tells us is not new: it meshes with reports of mistreatment at Guantanamo that have been leaking outfor some time. Rather, the important question, and the question that the Administration has sought to avoid, is who is responsible for condoning these practices.
A camp in World War II Germany or Japan. US prisoners milling about in a small 50' x 50' dirt pen. A detachment of Germans shows up on the other side of the fence. They call out somebody. The target visibly hesitates, but soon starts moving slowly toward the gate. As he approaches they shout again "Du kennst das Programm!" (You know the routine!).
So he drops to his knees, lies in the dirt prone, his feet facing the the gate and waits. Four Germans rush in shouting something. One presses his face hard into the dirt, another sits hard on his back, another ties his wrists, yet another his ankles. They lift him up, and carry him fully hogtied and barely able to breathe to their interrogating chambers. Actually it is a good clip trot while chanting their HOO-HAS, not carrying in a usual sense.
While there they had him kneeling on the cement floor, chained down beast-like with his wrists re-tied behind his back. Somebody points a gun to his temple and a military dog starts growling from its corner. The interrogation begins. The prisoners knows already that there is no chance to play a Hogan here, the guy behind the desk isn't Sergeant Schulz.
The scene repeats itself several times a week, year in, year out.
Not sure whether that really happened in World War II Germany or Japan but it surely did in Cuba according to "the Road to Guantanamo".
I didn't see anyone complaining when the US killed 100K japanese in one night of bombing. Or when we killed well over 1M German civilians during WW2. Of course, that was back when the US knew how to WIN wares, unlike today.
All these AQ thugs should be killed forthwith, then all this Gitmo brouhaha woould be over.
That's all fine Sarah, but what about the individual beaten to the point of now being crippled and confined to a wheelchair, who was determined to not be a terrorist or to have ever had any ties to any terrorist organization - the one who openly advocated democracy all his life? How many others are there who have nothing at all to do with terrorists in gitmo? Please give us a number of innocents who can be methodically beaten or raped to punish a terrorist, and then tell us what we should do once that number has been reached.
Should we make any effort at all to discern innocent from guilty, and just lay waste to them all and let god sort them out? If we do try to determine who is guilty and who is innocent, by what standards should we proceed?
Are the ones who run terrorists, and the ones who don't well trained terrorists? How about the ones who float versus the ones who sink? Could it be that our standards to determine guilt or innocence more truly reveal the nature of our character than how hard we fight or how many we beat or kill?
this is a war. we will either win or lose. we will kill them, or they will us.
were you sheddnig tears when the US killed hundreds of thousands of German women and children? When we killed hundreds of thousands of Japanese women and children?
Back when we knew how to win wars that's we did. We killed as many of the enemy as possible until he surrendered. With the Germans, after 9 million of them were dead, they surrendered. With the Japanese, it only took a few million.
This war will only be won once we do the same to Al Qaeda and all of their supporters. We haven't even killed 100K yet.
If we as a society are sheding tears and crying over the treatment of a few hundred guys at Gitmo, then we will not win this war, and frankly we will have shown that we don't have the stomach to win it.
Back in the 1940s do you think any one would have been complaining over how the Nazis were treated? the Nips? Of course not! The public wanted to kill as many of them as possible and destroy as much of them as possible until they unconditionally surrendered.
The nature of our character will be shown through victory or defeat.
One of the interesting side effects of the war in Iraq is how it has exposed the utter lack of moral values on the Right. Torture used to be something done by Nazis or Communists. Now it's essential to our national security. The Japanese mistreated prisoners of war and we called that a war crime. Now it's essential to defeating the terrorists.
Equally fascinating is the intellectual obtuseness. Follow the logic here:
1. Killing Germans helped us win WWII.
2. Therefore, killing NON-Al Qaeda members will help us defeat terrorists.
So instead of killing Germans in WWII, we should have been killing the Dutch. Great plan. Eisenhower was a fool not to think of it.
Frankly, the Right hasn't had the courage to follow its convictions. If they want a role model, Tamerlane's the guy: raze Bagdad to the ground, rape the women, sell the children into slavery, and stack 100,000 skulls outside the remains of the city. Now that's demonstrating your moral values.
Sarah Besides the obvious ends-justifying the-means error, you didn't address any of my questions. And if it sounded to you as though I was 'shedding tears', I would think a quick read would have revealed I was expressing concern for innocent people who have been injured - something you conveniently ignored. I ask again, what about the innocent people harmed and crippled?
And while you're at it, please let us know how many innocents we can take down, and which innocents are more acceptable as targets. Surely women and minorities, for example, are more acceptable as targets of abuse, since that have less power in our society (they've 'lost' in the struggle for power).
And if all you care about is killing Al Qaeda, why are we in Iraq? They were never there until we went there - so I'm assuming you must be against the invasion of Iraq, since it was not about killing more members of Al Qaeda. Oh, and which country is Al Qaeda in charge of, so we can invade the right country? Perhaps just wipe all mulsims everywhere? Would that work? How should we do that, Sarah?
Peace is harder that war, takes more work, takes more guts, and only people willing to work hard can have it. War is the coward's way out. Any idiot can burn down a house. Only a good carpenter can build one.