Balkinization  

Saturday, December 16, 2006

Murky's Law

Marty Lederman

A detailed article in today's Washington Post about the CIA's extraordinary renditions program in Europe quotes this justification from John Bellinger, State Department Legal Advisor: "I'd say that many European government officials and academics acknowledge now that there is a legal murkiness that applies to international terrorism."

Legal murkiness? Gosh, I wonder why that is?

It wouldn't happen to have anything to do, would it, with a program of state kidnapping on the streets of Europe, where the detainees are flown to Syria or Egypt or some other place that offers "assurances" that they will not be tortured?

Or with the official (apparently non-murky) position of the United States government that the prohibition on rendition in the Convention Against Torture does not apply to transfers from one foreign nation to another?

Or is the source of the legal murkiness, perhaps, that the United States has been quietly operating under the legal understanding, recently and finally articulated by Mr. Bellinger himself, that the Convention Against Torture simply doesn't apply at all to the conflict against Al Qaeda, which is instead governed by the laws of armed conflict? (Oh, and by the way, the laws of armed conflict just so happen not to provide any protections to Al Qaeda suspects at all, according to the Bush Administration pre-Hamdan. Fancy that! -- they fall into a strange, inexplicable gap between the Torture Convention and the Geneva Conventions. How murky. How convenient.)

Seeking the source of the murkiness, Mr. Bellinger? Look in the mirror.

Comments:

I use to say Bellinger was a good man in a bad spot. Now I just say he is in a bad spot of his own choosing.
Best,
Ben
 

I would hazard a guess that Bellinger's "murky" comment was to provide moral support for the several European governments and intelligence services which were actively assisting in the US rendition program to remove these folks from their countries and who are now under fire for allegedly violating some or another EU law.
 

I'm still wondering how he reconciles the reliance on "assurances" from Syria with the concurrently held and espoused admin view that "you can't believe anything those Syrians tell you" LOL

IMO, the "murky" is bc they are desparately hoping that someone, like Spataro or like the Canadian inquiry commission or the German investigators, find something that WOULD count as "murky" to justify kidnap and torture.

The problem is, the law isn't that murky. Human trafficking vis a vis the Pakistani and Afghani purchases, torture and abuse, kidnap - that stuff isn't "murky."

The lenght and terms of detention of armed combatants seized in battle condititions in a situation like Afghanistan is a bit murky, but those who lived there and took up arms against an invasion by a foreign country are, uniformed or not, clearly entitled to POW treatment up to the point where someone can prove they engaged in the commission of war crimes as un-uniformed belligerents. No one has ever required a uniform for residents to take up arms against invasion - they are still the enemy, but they are a legal enemy.

Those who are bought off warlords or kidnapped from countries and take to other countries for torture are a completely different proposition. There was never anything remotely legal about the detention and abuse of the chinese Uighurs at GITMO.

In general, people who kidnap and torture go to jail - even if they manage to kidnap and torture "bad" people, and definitely if they kidnap and torture innocent people.

The only thing "murky" is just how badly fouled the streams of justice and law have become when those who should be prosecuting those kinds of crimes are instead writing memos to solicit them.
 

More americans in limbo. Though luck for them as Bart would say. It's a war. Who cares about the constitution anyway?
 

Bart we're wating for your answer here.

I hereby promise to stalk you until you give an answer to Enlighted Layperson
 

Anne said...

More americans in limbo. Though luck for them as Bart would say. It's a war. Who cares about the constitution anyway?

Anne, this capture admitted to the military that he was working for a company which supplied weapons to the enemy and identified a cache of such weapons on a foreign battlefield. There was more than adequate reason for the military to detain him in Iraq until they could ascertain his role in this operation.

I am on the road on vacation between visits to in laws so I do not have time to do any research, but I believe the Hamdi court held that it was perfectly permissible for the military to implement a non judicial detention of US citizens caught on foreign battlefields assisting the enemy because of the exigencies of war.

Bart we're wating for your answer here. I hereby promise to stalk you until you give an answer to Enlighted Layperson

I posted an answer. Until I return later in the week, my participation may be spotty at best so you will have to be patient with me.

Also, I usually do not go back to older posts after 2-3 days so feel free to drop messages with links as you did in this case if you want me to go back to older conversations.

I usually do not have a problem answering any queries folks here might have unless I have already answered the question such as Robert's hypo about the White House snatching me off the street and declaring that I was an illegal alien.

Thanks.
 

Bart: I usually do not have a problem answering any queries folks here might have unless I have already answered the question such as Robert's hypo about the White House snatching me off the street and declaring that I was an illegal alien.

Yes, thankfully we've settled that one once and for all. There is nothing in the text of the MCA to prevent such, and once such detention occurs there is nothing in the text of the MCA which requires that detention be subject to due process. Of course you've never quite been man enough to actually say so, you continue to lamely dodge that bit of intellectual honesty with bogus assumptions that your family will magically be apprised of your wrongful detention and be able to sue for the due process rights stripped away under the text of MCA. And remember, Bart, the only reason I personalized that hypo for you in the first place was because until I called you out you were stonewalling in a most cowardly manner on the failure of MCA to protect innocent citizens.

Travel safe, hope you and the Missus are having a good trip. We'll be waiting for your return. We're aware of your tendency to drop older threads, and you aren't alone in it. It's one of the primary shortcomings of the blog-comments-medium; loose threads get dropped and losing arguments too often get neglected, only to raise their ugly fallacious heads later.
 

This comment has been removed by a blog administrator.
 

The confusion is the untested condition of MCA, which is an aberration in US tradition; its language about the Geneva Conventions is surreal. A ruling like the DC order December 14 there likely hastens the day congress will revisit and revise MCA, and, perhaps advances the probability that unless congress acts the Supreme Court may be addressing yet another politically charged discussion, this one impacting US foreign policy; Sen. Levin announced a tentative plan to review this matter in the Senate Armed Services Committee, see Financial Times article November 14, 2006.
Also, part of the gloaming is the relative nascency of the EU itself. The European Parliament in November 2006 published two draft reports which take a historical approach without addressing legality of renditions; one report discusses people involved and countries traversed there; the other report names companies which hired aircraft, there. The committee's website is there; the committee's full name is "EuroParliament, Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners".
A former official of the CIA gave testimony in broad terms at a hearing at the Senate Foreign Relations committee June 2006; the testimony covers 24 pages, and treats both the hastiness of the program's construction, as well as longterm goals, with interesting comments about how to depoliticize the processes which made the program come into existence, and perhaps a way to taper it; the speaker avoids politically inflammatory topics throughout, and in that effort leaves serious legality questions unaddressed.

Here is a recent discussion of one country's response to the US negotiators' request to arrange a rendition program.

Here, a humanrightswatch lawyer writes a review of a new book on the complicated questions surrounding rendition.
 

@Robert: Volokh has a great solution to that. If a threat get too old, it gets automatically closed.
 

Anne: Volokh has a great solution to that. If a threat get too old, it gets automatically closed.

At the risk of hijacking this thread with meta talk, closing old threads is pretty much the opposite of what I'm concerned with. Person A could make some chowder headed claim on a 3 day old thread, persons B C & D could decisively rebut. If Person A has abandoned the thread (because of short attention span, laziness, or cowardice) then closing the thread because it was a) old or b) old-and-inactive wouldn't do much to see such loose ends get tied.
 

"Bart" DePalma says:

Also, I usually do not go back to older posts after 2-3 days so feel free to drop messages with links as you did in this case if you want me to go back to older conversations.


Translated from BartSpeak&mark; into English:

"When I get trounced too many times, and the bleached bones of my dishonesty are starting to show through the mangled corpse of my 'argument', I like to 'move on' and pretend that it never happened ... until the next time I bring up the same old discredited horse-patooties (such as my recent claim that a "majority" "held" that the N.Y. Times could be prosecuted in N.Y. Times v. U.S), preferably in a different venue..."

The strange thing is that in one of the rare admissions of error from Bart, he admitted that his claim concerning the N.Y. Times case was in fact dicta (at best). But now he's back to calling it a "holding" (in error) again.

This has been a public service of the Institute for Truth In Bartology.

Cheers,
 

Robert Link [to "Bart"]:

Travel safe, hope you and the Missus are having a good trip. We'll be waiting for your return.

Well, I for one am not going to go apply for a writ of habeas corpus should his writings inexplicable cease. I'll just assume he's in "good hands" or otherwise "preoccupied". Don't ask questions, you know, we're at <*SHHHhhhhhh*> waaaaaarrrrrr... ;-)

Cheers,
 

"Bart" DePalma says:

I would hazard a guess that Bellinger's "murky" comment was to provide moral support for the several European governments and intelligence services which were actively assisting in the US rendition program to remove these folks from their countries and who are now under fire for allegedly violating some or another EU law.

Why is it the job of a U.S. official to provide "moral support" to other nations who are violating both their own laws and the Convention Against Torture?

Should Bellinger feel a similar compulsion to provide comfort to -- say, for instance -- Charles Manson?

Dontcha think that Bellinger's just spouting maladministration boiler-plate to defend the maladministration's own misbehaviour?

Cheers,
 

The more I read and learn about the Bush Team's position and conduct in the 'war on terror' the more dishonest, hypocritical and disgusting it is.

You might note I referred to the position of the Bush Team rather than the United States. That is because as an Australian following these issues I am endlessly impressed with the courage of people such as the Military Defence counsel and some of the Judge Advocates and judges who are prepared to make honest and principalled decision even at the risk of their careers, and the tireless efforts of the NGO's and pro bono lawyers who do their nation proud.

Regards from one of the US Government's biggest critics, and one of its people's biggest fans.

Graham
 

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