Balkinization  

Monday, October 02, 2006

Does Japan offer the better analogy?

Sandy Levinson

I note the following column published by Niall Ferguson in the Los Angeles Times. A professor of history at Harvard, he is, I'm quite confident, usually not thought of as on the left. So consider the following:

"Leave aside for now the question of habeas corpus; after all, prisoners of war have traditionally been denied this ancient protection. Much more sinister is Section 8 ("Implementation of Treaty Obligations"), under which "the president has the authority … to interpret the meaning and application of the Geneva Conventions and to promulgate … administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions."

"To see what this means, you need to know what the "grave breaches" are. According to Geneva Convention III, Article 130, they include "willful killing, torture or inhuman treatment, including biological experiments" and "willfully causing great suffering or serious injury to body or health."

"Insidiously, therefore, the Military Commissions Act empowers the president to authorize all lesser forms of physical and mental intimidation of prisoners. Suffering and injury are fine, in other words, as long as they aren't "great" or "serious." ....

"Official Japanese policy encouraged brutality toward prisoners of war by applying the Geneva Convention only mutatis mutandis (literally, "with those things having been changed which need to be changed"), which the Japanese translated as "with any necessary amendments."

"The amendments in question amounted to this: Enemy prisoners had so disgraced themselves by laying down their arms that their lives were forfeit. Indeed, some Allied prisoners were made to wear armbands bearing the inscription "One who has been captured in battle and is to be beheaded or castrated at the will of the emperor." Physical assaults were a daily occurrence in some Japanese POW camps. Executions without due process were frequent. Thousands of American prisoners died during the infamous Bataan Death March in 1942.

"Elsewhere, British POWs were used as slave labor, most famously on the Burma-Thailand railway line. Attempting to escape was treated by the Japanese as a capital offense, though the majority of prisoners who died were in fact victims of malnutrition and disease exacerbated by physical overwork and abuse. In all, 42% of Americans taken prisoner by the Japanese did not survive. Such were the consequences of "amending" the Geneva Convention.

"Red-state Republicans may still shrug their shoulders. After all, George W. Bush is no Tojo. Well, maybe not. But even if you don't see any resemblance between Bush's "administrative regulations" and Imperial Japan's "necessary amendments" of the Geneva Convention, consider this purely practical argument: As Winston Churchill insisted throughout the war, treating POWs well is wise, if only to increase the chances that your own men will be well treated if they too are captured. Even in World War II, there was in fact a high degree of reciprocity. The British treated Germans POWs well and were well treated by the Germans in return; the Germans treated Russian POWs abysmally and got their bloody deserts when the tables were turned."

Comments:

I do not think that is a completely fair analogy. Frankly, I doubt perfectly humane treatment on our part will affect in any way how al Qaeda will treat prisoners in its cluches. Reciprocity is a good moral position, but for all practical purposes means nothing with al Qaeda. Al Qaeda didn't show any restraint with conducting 9/11. Al Qaeda readily beheaded Daniel Pearl and Nick Berg and other civilians captured. Al Qaeda haven't shown any restraint in torturing and killing the few U.S. troops (fortunately very few of our troops give them the opportunity). This is an enemy that has no restraint in slaughtering fellow Muslims because they are not Muslim enough for them.

The primary argument for not engaging in torture is because we are better than that. We do not want to mimic this enemy.

We should engaged them on the battlefield and kill them, but we should not lower ourselves and torture them.
 

And that is how we treated Imperial Japan. The Japanese POWs we captured (they all did not fight to the death) were saved by American officers (the Marines on the line often killed them for the attrocities they had witnessed on their fellow captured Marines), they were interrogated humanely and kept till the end of the war. I believe a surprising number of them gave useful information without torture. But we inflicted the full brunt of war, without mercy, in attacking Imperial Japan until it surrendered.
 

"... we inflicted the full brunt of war, without mercy, in attacking imperial japan until it surrendered".

...which is one of the problems here. even if we were to assume that we were able to take the president's word for it that "alternative interrogation techniques", suspension of habeus corpus, etc. will cease upon surrender of the enemy, given the amorphous nature of the enemy, which the administration repeatedly emphasizes is like no other enemy we have ever engaged, and given that the president is to assume the power to determine not only the scope of the battle, but who the enemy is, how will we actually know when the enemy has surrendered?
 

Also overlooked are the lessons of our World Wars regarding treatment of detainees and occupied countries. When you treat the vanquished throughout (both during the war and after) with a general sense of dignity and support, you make an ally of a former enemy (as with Germany and Japan now). When you use your position to get revenge or gain advantage (as with Germany in the post-WWI era) you end up fighting the same wars over again. I suppose that some people have to learn their history the hard way...and we'll learn a lot of hard lessons from Bush's decisions in this war.
 

Reciprocity is surely the weakest argument for honoring Geneva, at least in the case of our current War on Terrah (is there an "h" in that?).

I would call everyone's attention to Christopher Dodd's op-ed in the LA Times. His dad was the # 2 U.S. prosecutor at Nuremberg, behind Justice Jackson.

Why not just give in to vengeance? Why not just shoot them, as Winston Churchill wanted to do? Why not just succumb to the law of power politics and impose our will without any regard to principle? Why not just give in to violence, which was certainly within our ability and, many argued, within our right?

Why not? Because the United States has always stood for something more.

When we entered World War II, we did not fight for land or for treasure — we fought for an idea. The idea that laws should rule the land, not men; that the principles of justice embodied in our Declaration of Independence and Constitution — of due process, of innocence until proven guilty, of the right to a fair trial — do not get suspended for vengeance.


We're supposed to persuade people in Syria and Iraq, Pakistan and Arabia, that we believe they're entitled to the same rights and freedoms as we do. I don't see how any of them could possibly glean that message from the administration of George W. Bush. Whatever happens in Iraq, we have lost a battle in the only theater where terror can be stopped -- public opinion.
 

Professor Levinson:

Congress (not the President) has interpreted what the Geneva Conventions forbid pursuant to its Article I power to set rules for Captures.

Congress (not the President) has therefore authorized all forms of interrogation not prohibited by this legislation.

The President may only add, not subtract, protections on top of what Congress has authorized.

The comparison with Japan is extremely weak since Congress interpreted the Geneva Conventions to ban nearly all of the war crimes perpetrated by the Japanese on our POWs.

As for the reciprocity argument, the only nation state which has ever followed the Geneva Conventions (for the most part) in its treatment of our POWs was Germany. None of our other enemies prior to this legislation ever has.

I, for one, would be thrilled if our unlawful terrorist enemies would treat our POWs the way we treat their captures. It would be an enormous improvement over the way our POWs have been treated since the Geneva Conventions of 1949.
 

What about "principle," Mr. DePalma?
 

What about "principle" Mr. Anderson?
 

I am willing to grant that humane treatment of captured enemies will in no way induce the enemy in this war to treat our soldiers humanely.

Might I suggest, however, that humane treatment of captured enemy still has its advantages by assuring our enemies that it is safe to surrender.
 

Reciprocity is, in fact, the best argument for *not* providing the protections of Geneva to Al Qaeda detainees. After all, how are the Geneva conventions to be enforced? There is no international police to ensure enforcement. Thus, Reciprocity has long been built into the Geneva conventions as an enforcement mechanism, and it is only recently that left/liberal concepts of the universal applicability of the conventions have come to dominate. Article 4 of Geneva IV, for example, provides that "nationals of a State which is not bound by the Convention are not protected by it." In denying protection in this way, Geneva IV incorporates the old Westphalian system of state sovereignity, but it's intent is clear: the purpose of this provision is to deny the protections of Geneva to those groups which have refused to abide by international law.

The modern realities of international terrorism could arguably require that we abandon the Westphalian conception of the State as the exclusive international actor and accept that international organizations like Al Qaeda should be considered international actors in their own right. Once that leap is made, it's no large leap to say that Al Qaeda has violated Article 4(A)(2) and the laws of war generally by deliberatly targetting civilians (a decision which also explicitly takes them out of the scope of Article4(A)(6), note) and that, consistent with the text of Article 4(A)(2) and with the principle of reciprocity embodied in the Geneva Conventions, Al Qaeda adherents should be denied all protection under Geneva.

None of these conclusions are necessary, of course, and of course I am mimicking the arguments of the (infamous, in some circles) John Yoo. My point is simply this: reciprocity is the single *worst* justification for asking the US to unilaterally adhere to the Geneva Conventions in the conflict with international terrorism, because the principle of reciprocity has traditionally been used to deny the protections of international law to groups that deliberately target civilians.
 

Bart: Congress (not the President) has interpreted what the Geneva Conventions forbid pursuant to its Article I power to set rules for Captures.

The White House drafted the Military Commissions Act; the original version was reported on here by Professor Lederman as it was being shopeed around the hill for sponsors. Is this not the case?
 

Enlightened Layperson said...

Might I suggest, however, that humane treatment of captured enemy still has its advantages by assuring our enemies that it is safe to surrender.

We are dealing with a death cult which worships suicide as martyrdom. Generally, we have to ambush the enemy and grab him to capture him. His surrenders are not usually voluntary.

The last time we faced anything like this was fighting the Japanese in WWII and we took darn few casualties in that war because they would not surrender.
 

Robert:

In Hamdan, the Court stripped the Executive of its Article II authority to make rules for the trial of unlawful enemy combatants.

Only Congress could enact these rules and the President could not order Congress to pass legislation ratifying the prior regime of executive rules.

The Administration came up with a draft statute which was changed when vetted by the JAG Corps and changed some more by Congress. The final bill was substantially different that the prior regime.
 

Bart,

The court did no such thing: it said that any such rules had to conform to the law.

And they didn't mean by passing new "laws" to legalize crimes or prevent courts from ruling on the law.
 

Bart,

If only the President believed Congress can interpret Common Article 3's requirements. That would at least bring two real branches to the table. But don't all three belong there? Treaties are the Supreme Law of the Land. Congress itself is subject to them. That's why it approved the Convention Against Torture subject to reservations, declarations and understandings, which it did not do when it approved Common Article 3.

There's less hope of this now with our new Chief Justice, who was nominated after signing off on these words in the DC Circuit Court opinion in Hamdan (citations omitted):

Hamdan was captured during hostilities [in Afghanistan]. But is the war against terrorism in general and the war against al Qaeda in particular, an “armed conflict not of an international character”? (Common Article 3 applies only to armed conflicts confined to “a single country”). President Bush determined, in a memorandum to the Vice President and others on February 7, 2002, that it did not fit that description because the conflict was “international in scope.” The district court disagreed with the President’s view of Common Article 3, apparently because the court thought we were not engaged in a separate conflict with al Qaeda, distinct from the conflict with the Taliban. We have difficulty understanding the court’s rationale. Hamdan was captured in Afghanistan in November 2001, but the conflict with al Qaeda arose before then, in other regions, including this country on September 11, 2001. Under the Constitution, the President “has a degree of independent authority to act” in foreign affairs, and, for this reason and others, his construction and application of treaty provisions is entitled to “great weight.” While the district court determined that the actions in Afghanistan constituted a single conflict, the President’s decision to treat our conflict with the Taliban separately from our conflict with al Qaeda is the sort of political-military decision constitutionally committed to him. To the extent there is ambiguity about the meaning of Common Article 3 as applied to al Qaeda and its members, the President’s reasonable view of the provision must therefore prevail.

Such difficulty! The majority could have dispelled it by reading Judge Williams's concurrence. He showed clearly why the conflict with al Qaeda was an “armed conflict not of an international character,” for unambiguous reasons entirely different than those the majority imputed to the District Court. The Supreme Court would affirm that reading, whose merits a Contracts 101 student could see, never mind a lawyer with John Roberts's intellect.

You battle results facing the government you have, not the one you'd like to have. On the field on which this one will be waged, Tojo's not a bad analogy.
 

 
 
 
And Tojo was later executed for war crimes.
 
 
That's right, the precedent exists for charging, trying, convicting, and executing heads of state, not merely enlisted "grunts"... and it could be applied to George W. Bush.
 
 
 

Creeping Truth said...

Bart, If only the President believed Congress can interpret Common Article 3's requirements. That would at least bring two real branches to the table. But don't all three belong there?

No. The elected branches set policy, the judiciary is only empowered to interpret the rules which the other two branches set for captures.

The Court in Hamdan and in previous cases recognized that the President pursuant to his general Article I CiC power has the first word in setting rules for Captures, but Congress has the final word on the subject pursuant to its express Article I power to set rules for Captures. Article II does not grant the courts a similar power.

Treaties are the Supreme Law of the Land. Congress itself is subject to them. That's why it approved the Convention Against Torture subject to reservations, declarations and understandings, which it did not do when it approved Common Article 3.

Treaties are subordinate to the Constitution. Either the President or Congress can withdraw from a treaty pursuant to their constitutional powers as Mr. Bush did from the ABM treaty in 2001, Mr. Carter did from the mutual defense treaty with Taiwan in 1979 and Mr. Roosevelt did from the Treaty of Friendship with Japan in 1939.
 

Creeping Truth, quoting Chief Justice Roberts:
But is the war against terrorism in general and the war against al Qaeda in particular, an “armed conflict not of an international character”?


Which again brings to light the importance of refuting the war fallacy as applied to pursuing justice against the persons behind nine-one-one, in particular, and as applied to ending terrorism in general. Properly refute the war metaphor and the question of "international character" is made moot.
 

Bart,

How can congressional power under the Capture Rules trump a treaty obligation when treaties are the Supreme Law of the Land? It would seem that any rules of capture Congress adopts are subject to treaties, particularly those that speak directly to the subject. The Constitution couldn't be clearer.

In Hamdan the Capture Rules did not come up. The majority simply bought off on the government's claim that the authorization for use of military force gave Bush the power to detain. The interesting thing there is that Bush asked for such authorization pre-Afghanistan and was denied it. He read it into the AUMF anyway and then-Judge Roberts bought off on it.

The shift from one rationale to another is breathtaking. If Congress says, "Get these guys!" it's put under the Capture Rules. If Congress says, "Mind your p's and q's," the Commander in Chief power wipes it out. If the Supreme Court says, "You screwed up," it's beyond their competence to question whether people pulled off of lists compiled by paid bounty hunters -- in derogation of army procedures for making initial assessments of combat status -- should be detained without due process.

This is what they call result-oriented legal reasoning. Fortunately the Supreme Court stepped in to prioritize laws and powers thereunder. I hope they stay the course.
 

Permit a brief follow-up because I did not fully address Bart's arguments.

If Congress is going to withdraw from a treaty, it has to say it is doing so. It can't do so implicitly. Treaties are higher than the positive law it enacts.

As for the Constitution being above treaties, I think that if it puts treaties on the plane that it occupies, its grants of power are subject to treaties no less than to the Constitution itself and thus circumscribed thereby.

To say otherwise is not only to invite the United States to assume outlaw status but to dismiss as accidental the fact that the Declaration of Independence was itself premised by "a decent respect to the opinions of mankind." Such a respect has been no small part of what this nation has been about.

Does all of this get swept aside in a unipolar world where we're the pole? That's the nub of the matter, isn't it?
 

The Supreme Court has consistently applied the last in time rule to treaties and statutes. That means if the Military Commissions Act overrides a treaty, it rules.
 

Creeping Truth said...

Bart, How can congressional power under the Capture Rules trump a treaty obligation when treaties are the Supreme Law of the Land? It would seem that any rules of capture Congress adopts are subject to treaties, particularly those that speak directly to the subject. The Constitution couldn't be clearer.

You are confusing the scope of treaty law with the power to adopt or withdraw from a treaty.

While a treaty is in effect, it trumps national statutes enacted by Congress. However, by definition, nothing trumps the Constitution and the Constitution can only be changed through the amendment process with a super majority.

Treaties are instead a creature of the President's executive power as head of state for foreign policy matters. The President drafts and enters into the treaty on behalf of the nation. The only check on this power is that the President must gain consent of the Senate. Surely, you are not arguing that the President with the consent of just one house of Congress can amend our Constitution through treaties?

Because this Senate approval for treaties is analogous to consent of a cabinet appointment, it has generally been assumed that Presidents could withdraw from treaties the same way they can dismiss cabinet officers approved by the Senate. Presidents have exercised this power multiple times over our history.

I would argue that Congress may also withdraw from treaties to the extent that the treaty affects areas of the law over which Article I grants Congress plenary authority like setting rules for captures.

Here is another very realistic hypothetical. Let's assume a future President enters into a treaty to join the International Criminal Court which could exercise jurisdiction over our soldiers. However, the ICC grants far fewer procedural protections for our soldiers than does our Constitution and the UCMJ. The Congress should be able to withdraw our soldiers from that treaty through the UCMJ by exercising its plenary power to enact laws to regulate the uniformed services. At the very least, I doubt the Courts would hold that an ICC treaty may take away a soldier's protections under the Bill of Rights.

In Hamdan the Capture Rules did not come up.

You may want to reread the court's majority opinion, which starts off its analysis of the UCMJ by citing to multiple Article I provisions which grant Congress the power to set rules for military commissions through the UCMJ. If Article I did not provide Congress with the power to set rules for Captures, the President's rules would have taken precedence under his Article II CiC power.
 

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