Balkinization  

Saturday, March 17, 2007

John Yoo Appears to Confirm CIA Waterboarding

Marty Lederman

In this interview with the British weekly The Spectator (as published in the Montreal Gazette):
"Does water-boarding (inducing the perception of drowning in someone to make him talk) inflict serious pain?" Yoo asks. "I doubt that the CIA thinks that it does ... or that it is going to stop using the technique, if the stakes are high enough." So despite the new law, the old tactics will be available? "I think so. And more important, so do they ..."
[NOTE: The elipses here, which might be important, are supplied by the interviewer.]

For what it's worth, John here is articulating an incomplete, and thus incorrect, legal standard. A technique is also prohibited torture if it is intended to result in "severe physical suffering." And, of course, that's the whole point of waterboarding and other of the CIA techniques. See my longer explanation here.

John also confesses to the Gazette that he just doesn't understand why torture is prohibited: After all, "death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?"

Good thing, isn't it, that the person responsible for the Bush Administration's construction of the absolute prohibition on torture (one enacted without a single dissenting vote and that even the President ostensibly approves, by the way) is someone who thinks it's unreasonable?

UPDATE: In response to John's oh-so-reasonable logic -- "War means killing people[, so] if we are entitled to kill people, we must be entitled to injure them" -- Professor Dave Glazier writes with the following. [Dave actually knows quite a bit about the laws of war -- he served twenty-one years as a Navy surface warfare officer before going to law school -- but in this case, his remarks reflect basic propositions that even Deputy Attroneys General at OLC should be familiar with.]:
One of the most fundamental problems with Yoo's logic is that he is
simply ignorant of the law of war. Yoo clearly believes that war is essentially a lawless regime, subject only to a few treaties he knows of. In his view, if you can distinguish your situation from those covered by explicit treaty language, then you get to do what you want. What Yoo fails to recognize is that war is far from a
lawless regime.

A telling point is to examine international law treatises from the 18th and 19th centuries. Typically a full half to two-thirds of those tomes are devoted to the law of war. And the scope of coverage of the law of war has also significantly expanded during the Twentieth Century.

The most important point in this massive body of law is that war is not legally about killing. It is about compelling an enemy to submit. To achieve this it is lawful to incapacitate the enemy's military forces and damage or destroy valid military objectives. But you can never kill or further injure an enemy who offers to surrender or who is already incapacitated by illness, wounds, or previous capture. The people Yoo wants to "wound" are already incapacitated, and to inflict any further harm on them is a war crime. To argue that we could have killed them, so to mistreat them a bit should be OK, is totally contrary to every fundamental principle of the law of war. We could kill or wound them only when they were combatants at large and there was a military necessity to disable them from conducting further military operations against us. As soon as they were incapacitated, they became protected under both longstanding customary principles, enforced through literally thousands of war crimes convictions post-WWII, and the more familiar law of war treaties.
I would only partially quibble with (or clarify) one thing Dave writes -- that to inflict "any further harm" on incapacitated combatants is a war crime. I suppose that depends on what Dave means by "any further harm." What is plain, however, is that "cruel treatment and torture" (i.e., at least several of the CIA "enhanced" techniques) are absolutely prohibited under Common Article 3, and that torture and assault are also made unlawful under the U.S. criminal code.

Comments:

Professor Lederman:

For what it's worth, John here is articulating an incomplete, and thus incorrect, legal standard. A technique is also prohibited torture if it is intended to result in "severe physical suffering." And, of course, that's the whole point of waterboarding and other of the CIA techniques.

To the contrary, I would suggest that the correct standard is whether waterboarding causes severe mental pain, not physical suffering.

Waterboarding involves placing a cloth over the subject's mouth and running water over it. The subject usually breaks in less than two minutes because of panic induced by the sensation of drowning. There is no physical pain of any substantial degree.

The question is whether momentary panic constitutes "severe mental pain." We disagree on this subject for the reasons given in several previous posts. Severe mental pain in my mind are such things as simulated executions, torturing comrades in front of you until you talk and threatening family members - not momentary panic.
 

Reading Yoo's remark that because torture is not death, torture should be allowed when doing so will save lives took my mind's eye to Eric Muller's blog -- isthatlegal.org -- and the photos he recently posted of a 1936 Nazi rally in Bad Kissingen.

Yoo's starting to sound like someone who might support experimenting on humans so we can find a way to save our troops in wartime. What's one life taken compared to many saved?

Yoo's on an ugly, ugly path.
 

>>death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified.

I guess by this logic death is also worse than rape or pedophilia or slavery -- so how could anyone argue that we are not also entitled to turn suspects into sex slaves or human chattel? Come on, that's just moral common sense.

Oh, and in case you think I'm being facetious, Yoo is the guy who argued that Bush could have the testicles of children crushed in order to get information out of "terrorists." Just moral common sense, isn't it? Crushed testicles of a 5-year-old or "50 million dead" -- the choice is yours!

What about crushed testicles of 1,000 5-year-olds versus "50 million dead?" How about 10,000? I'm interested in his moral calculus here.

Sorry, John Yoo, you are a disgrace.
 

I wonder if Mr Yoo would be willing to extend the line of his argument to apply to abortion, adultery, pederasty, bestiality, child pornography...oh, so many sins, so little time.

Or do those require situational ethics, which his definition so clearly does not?
 

We should also bear in mind that morality is not a suicide pact.
 

I wonder if Lisa'a brother knows that real torture and pain, physical and mental, is reading his diatribe (rendered under the influence?).
 

Somewhere out there is a collector of invalid applications of the principle of "the greater includes the lesser" who needs to know about John Yoo.
 

John Yoo, and the other attorneys in the Office of Legal Counsel and the White House Counsel's Office who were involved in sanctioning this official torture policy, are a disgrace to the legal profession, and they all should be disbarred and tried(in a court of law with due process) as war criminals.
 

On a related point, Khalid Sheikh Muhammed did allege at his status hearing this week that he had been mistreated in custody, according to a joint statement by Sens. Levin and Graham, who witnessed the proceeding. Their statement said in part:

"In addition, the tribunal was presented with a written statement from KSM alleging mistreatment during his captivity prior to arriving at Guantanamo. This statement was made a part of the classified record of the proceeding. The panel said that the allegations will be submitted to appropriate authorities. Allegations of prisoner mistreatment must be taken seriously and properly investigated. To do otherwise would reflect poorly on our nation."

What I wonder is, given the retroactive changes in the law made by the Military Commissions Act, what would the "appropriate authorities" do about it now, and what does "properly investigated" mean?
 

It's not just a greater-includes-the-lesser argument; it's a greater-includes-the-lesser argument where the 'greater' is the specter of a nuclear bomb being detonated in downtown Chicago.

So what isn't included in that scope? What wouldn't be a lesser evil? The trouble with this argument is that if the harm is high enough (say, 2M dead), just about anything imaginable is justified, including a military takeover of the government, the rescission of the constitution, or the killing of any number of people materially less than 2M -- say, the killing of 500K people to save 2M others. If all people are created equal, isn't a net 'savings' of 1.5M people worth killing the other 0.5M?

I'm just trying to follow Yoo's logic to its conclusion. I don't see a principled line to draw here. I would be curious to hear if Yoo thinks there is such a line, and more importantly, where he would draw it.
 

Zach: precisely. One could write a huge book about the Modern Right's abuse of reason. Yoo's routine here is part of the same seamless web of bullshit that includes Cheney's "One Percent Doctrine" and the Rehnquist Court's nails-on-a-chalkboard re-framing and divide-and-conquer rhetorical strategies. The bullshit artists are winning.
 

Regardless of the "effectiveness" of waterboarding, many studies and historical examples have shown that torture is less effective in recovering information from suspects and more effective in coercing testimony and false confessions from those subject to it.
 

I would contend that both Professors Yoo and Glazier are missing the determining factor by concentrating on the location of the enemy combatant.

Yoo offers this syllogism: a soldier may legally kill another soldier on the battlefield, killing is "worse" than torture, thus a soldier should be legally able to torture.

Glazier's rejoinder is that the rules change after you capture and remove the enemy combatant from the battlefield. "[Y]ou can never kill or further injure an enemy who offers to surrender or who is already incapacitated by illness, wounds, or previous capture," argues Glazier. However, this categorical statement is not a correct statement of the law.

Western nations over the past 3-4 centuries created laws of war to protect captures and civilians. However, in order to eliminate the free rider problem where those enemy combatants who violated the laws of war against soldiers and civilians would still get to enjoy its benefits, the laws of war developing over the 2-3 centuries through Geneva Conventions were based on the reciprocal principle that enemy combatants who followed the rules enjoyed the protections of those the rules. In stark contrast, as we have explored in responses to previous posts by Scott Horton reviewing our Revolution and Civil War, unlawful enemy combatants who flouted the rules of war were denied the benefits of those rules and were usually executed. Therefore, while Glazier was correct to point out that Yoo erred in applying battlefield rules to captures, Glazier himself erred in his categorical claim that all enemy captures are entitled to the same protections of the laws of war like the Geneva Conventions.

The fact that a military can legally kill a captured unlawful enemy combatant begs a variation of Yoo's syllogism: a military can kill a captured unlawful enemy combatant, killing is "worse" than torture, thus a military can torture an unlawful enemy combatant. This is where Professor Glazier could have correctly noted that international laws of war like the Torture Conventions have reached the moral conclusion that torture is actually worse than killing and is prohibited against all captures. In that case, Yoo's syllogism falls apart and we return to the question of what constitutes "torture" under the law.
 

"Bart" DePalma continues his tedious 'proof by repetitive assertion ad nauseam':

Glazier's rejoinder is that the rules change after you capture and remove the enemy combatant from the battlefield. "[Y]ou can never kill or further injure an enemy who offers to surrender or who is already incapacitated by illness, wounds, or previous capture," argues Glazier. However, this categorical statement is not a correct statement of the law.

Absolutely wrong (much as "Bart" likes to pretend, for purposes only known to him, that this is so). We just had a trial conclude where U.S. soldiers were convicted of killing captured Iraqis, after conspiring to release then and shoot them as they "tried to escape".

The barbarity of this is apparent to all thinking people ... but "Bart" puts himself down clearly and unequivocally on the dark side. "Bart" would be defending the Japanese on Chichi Jima were he to find his 'interests' with the Japanese Imperial gummint.

In stark contrast, as we have explored in responses to previous posts by Scott Horton reviewing our Revolution and Civil War, unlawful enemy combatants who flouted the rules of war were denied the benefits of those rules and were usually executed.

"Bart" has ignored refutations of this nonsense, but trots the same ol' crapola out time and time again, like no one has said anything that goes counter to his counter-factual scenario. I note that he's dropped the "summarily" from his "summarily exected" from times of yore, but it's still the same ol' sh*te.

As the actual law stands, to kill a hors de combat captive without a regular trial or court martial, for a crime of which the regular and recognised punishment is death, would be a war crime (and illegal under U.S. law as well).

Cheers,
 

As the actual law stands, to kill a hors de combat captive without a regular trial or court martial, for a crime of which the regular and recognised punishment is death, would be a war crime (and illegal under U.S. law as well).

Arne: Can you enlighten a layperson by providing a link to relevant military law?
 

enlightened layperson:

[Arne]: As the actual law stands, to kill a hors de combat captive without a regular trial or court martial, for a crime of which the regular and recognised punishment is death, would be a war crime (and illegal under U.S. law as well).

It goes to killing without justification, which is murder under the UCMJ (10 USC § 918) or manslaughter (10 USC § 919).

10 USC § 918 talks about killing without "justification or excuse", and § 919 says "unlawfully", so this doesn't really answer the question, but killing captives without trial is not with "justification".

Aside from that, U.S. criminal law prohibits such behaviour.

The point of my qualifier "without a regular trial or court martial, for a crime of which the regular and recognised punishment is death" was meant to cover the situation where there is a trial and for which the legal punishment is a death sentence, in which case, the executioners wouldn't be guilty of murder. The stuff about the "regular and recognised punishment is death" is from the Geneva Conventions, which stipulate that the same rules that apply to one's own people and outside of war should be applied for trials of detainees; you can't manufature new crimes for detainees, or specify harsher punishments for them.

Cheers,
 

If the law in fact (as seems to be the case) prohibits us from employing coercive interrogation techniques against terrorists, then the law needs to be changed to reflect changed realities--especially in light of the fact that the "blowing up buses full of schoolkids is fun and holy" crowed we're fighting against are exactly big observers of the "law of war."
 

EL:

You may rely upon our resident gadlfy for law at your own risk.

The current applicable US military law for trials for enemy combatants was established last year in the Military Commission Act.

Although this is not expressly addressed in the statute, the MCA's establishment of a formal system of military commissions for unlawful enemy combatants for the first time in our history indicates to me that the military is no longer free to execute unlawful enemy combatants without going through a military commission.
 

At some point, the principles of morality (strategy) trump any discussion on legal technicalities (tactics). The moral issues are fairly simple:

1) When law is in effect, the government and individuals in its employ are bound to act by due process - they may not imprison, kill, torture, or any such without authorization that is ultimately both democratically legitimate, and justified by tradition (law and custom).

2) Under lawless/emergency conditions, requirement 1 is suspended, but only to the degree absolutely required to return to a lawful state. So a police officer may shoot a suspect brandishing a weapon without further authorization, and a soldier can shoot his opponents on the field of battle. But neither may use violence against an opponent who has surrendered, without further legal and moral authorization.

From 1+2 we get the treatment of POWs. Once surrender has occurred, they must basically be treated like our own soldiers, outside of security requirements. From 1+2 we also get the treatment of partisans: we may kill them in battle, but once captured, they can not be arbitrarily executed, but must be tried in a court of law.

Those who appear to be civilians (say, "illegal enemy combatants") must be tried in courts for their crimes. You can't treat them like POWs, then deny them the treatment of POWs and claim that they are actually civilians, except when you decide they are POWs.

At this point after experiencing the nightmare of WWII, anyone who disputes the moral principle that all human beings, and not simply citizens, must be treated with due process by governmental entities except in exigent circumstances such as the field of battle, are simply moral outlaws. We now know what the ultimate result of such a policy is, given the power that modern bureaucracy has.

Descending to a medieval morality while using modern weapons and organizations, simply because some of our opponents have, is the most disgusting kind of moral relativism imaginable, unfounded in empirical fact, historical analysis, or logical self-consistency.
 

"Bart" DePalma is concfozed:

You may rely upon our resident gadlfy for law at your own risk.

The current applicable US military law for trials for enemy combatants was established last year in the Military Commission Act.


"Bart", "Bart", "Bart".... What I said was that killing a hors de combat person before or without trial was illegal. Are you tellmg me that the MCA allows you to kill a person without trial (or some vistigial remnant thereof)?!?!?

Although this is not expressly addressed in the statute, the MCA's establishment of a formal system of military commissions for unlawful enemy combatants for the first time in our history indicates to me that the military is no longer free to execute unlawful enemy combatants without going through a military commission.

Newsflash for the "Bartster" here: The MCA was put together in response to the striking down by the Hamdan court of the "military commissions" that the Dubya maladministration had cobbled together in the aftermath of Rasul. How "Bart" here gets the idea that prior to the MCA, the maladministratioj could just take people out back and shoot them is beyond me (particularly in light of the decisions in Rasul and Hamdan. Such a "read" of the MCA is so fanciful as to suggest the heavy doses of Haldol are needed in the "Bartster" household.....

FWIW, the MCA didn't provide "trials" (such as they are) for "unlawful enemy combatants"; it instead purported to define who is this new species of "unlawful enemy combatant[]" (and thus, those people who don't have the right in court to see and contest the evidence against them, or to have independent defence counsel, to compel witnesses for their own defence, and the various things that we, as civilised people, think constitute "due process of law").

Cheers,
 

The grotesqueness of the radical position:
However, in order to eliminate the free rider problem where those enemy combatants who violated the laws of war against soldiers and civilians would still get to enjoy its benefits, the laws of war developing over the 2-3 centuries through Geneva Conventions were based on the reciprocal principle that enemy combatants who followed the rules enjoyed the protections of those the rules.

How much further can one go into the absurd, than to use the economic concept of the "free-rider" to describe reciprocity at the level of the international laws of war? Making an analogy between senior citizens not paying AARP dues and the limitations in open warfare required for minimal human decency is simply morally grotesque.

The historical reasons for reciprocity are two-fold: 1) So that European colonial powers could avoid applying civilized standards to nations in the periphery and 2) to pressure colonial powers outside the conventions to join them. Reason #1 is clearly amoral, and today rejected by human civilization. Reason #2 is no longer applicable, as almost all nations are signatories to the major conventions, and the essential elements of them regarding treatment of POWs and civilians is now customary law.

Additionally, the reciprocal parties are not individual combatants, but states. The laws of war are intended to structure international relationships, and constrain the actions of state - it is a complete misrepresentation to describe them in terms of individuals waiving rights. Individuals are subject to trials for breaking these laws - states are subject to international action, or dropping reciprocity. Neither affects our duty, as a civilized society, to act with due process in all but exigent cases as a function of our internal structure.

These are not technical legal questions, but problems of deep substance as to the nature of contemporary human civilization. To treat them like a game is a sign of politics beyond the pale of discourse.
 

Arne Langsetmo said...

Are you tellmg me that the MCA allows you to kill a person without trial (or some vistigial remnant thereof)?!?!?

Yes.

A military commission under the MCA is not close to a US criminal trial as most lawyers here will readily admit. At most, these military commissions are beefed up unlawful combatant status panels. Under the MCA, unlawful enemy combatants enjoy nearly none of the due process rights of a US citizen in a civilian trial or soldiers under a courts martial.

Newsflash for the "Bartster" here: The MCA was put together in response to the striking down by the Hamdan court of the "military commissions" that the Dubya maladministration had cobbled together in the aftermath of Rasul. How "Bart" here gets the idea that prior to the MCA, the maladministratioj could just take people out back and shoot them is beyond me (particularly in light of the decisions in Rasul and Hamdan. Such a "read" of the MCA is so fanciful as to suggest the heavy doses of Haldol are needed in the "Bartster" household.....

You are not nearly as amusing as you appear to think that you are. This kind of misrepresentation is why I generally ignore you unless I am bored.

Yoo, Glazier and I were were talking about the rights of captures under interrogation pursuant to the international law of war, not the Hamdan rewriting of habeas corpus, the UCMJ and Geneva Conventions which lasted less than a year.
 

RandomSequence said...

How much further can one go into the absurd, than to use the economic concept of the "free-rider" to describe reciprocity at the level of the international laws of war?

You are free to make a more apt comparison if you can find one. Calling my analogy "grotesque" or "absurd" is not a rebuttal, it is simply an ad hominem attack.

The historical reasons for reciprocity are two-fold: 1) So that European colonial powers could avoid applying civilized standards to nations in the periphery and 2) to pressure colonial powers outside the conventions to join them.

Please.

The laws of war were mainly written by Europeans who were setting rules for their own frequent fratricidal wars against one another. These rules were selectively or not applied at all to non Europeans.

Additionally, the reciprocal parties are not individual combatants, but states. The laws of war are intended to structure international relationships, and constrain the actions of state - it is a complete misrepresentation to describe them in terms of individuals waiving rights.M

Read the Geneva Conventions definition of a combatant eligible to receive POW rights. The definition is a combination of group and individual responsibilities. If a soldier of a signatory nation of the Geneva Conventions fights as a civilian, he is an unlawful combatant as surely as a fighter in al Qeada doing the same thing.

These are not technical legal questions, but problems of deep substance as to the nature of contemporary human civilization.

OK, go ahead an make your argument as to why it is civilized or in the least moral to extend the benefits of POW status to unlawful enemy combatants.

Explain why we should reward and thus encourage an enemy which either personally tortures and then murders our captured soldiers or innocent civilians or indirectly murders civilians by dressing as and hiding among civilians and drawing our fire onto them?

This is not a legal game, this is real, Technicolor blood and guts life and death.
 

"Bart" DePalma:

[Arne]: Are you tell[in]g me that the MCA allows you to kill a person without trial (or some v[e]stigial remnant thereof)?!?!?

Yes.

A military commission under the MCA is not close to a US criminal trial as most lawyers here will readily admit....


"Bart" should have noted (but did not) that I'd lumped these commissions under the broad rubric of "trials": "FWIW, the MCA didn't provide 'trials' (such as they are) for 'unlawful enemy combatants'..."

At most, these military commissions are beefed up unlawful combatant status panels....

Oh, I agree, to some extent. But they are not CSRTs; they are "trials" in the sense for prosecuting crimes and passing sentences; something that the CSRTs don't purport to be. And it will be interesting to see if the courts look askance at whether these "commissions" are in fact compatible with our constitutional safeguards and with our treaty obligations.

... Under the MCA, unlawful enemy combatants enjoy nearly none of the due process rights of a US citizen in a civilian trial or soldiers under a courts martial.

I agree. Which should be an indication that they do not comport with the Geneva Conventions.

[Arne]: Newsflash for the "Bartster" here: The MCA was put together in response to the striking down by the Hamdan court of the "military commissions" that the Dubya maladministration had cobbled together in the aftermath of Rasul. How "Bart" here gets the idea that prior to the MCA, the maladministratio[n] could just take people out back and shoot them is beyond me (particularly in light of the decisions in Rasul and Hamdan. Such a "read" of the MCA is so fanciful as to suggest the heavy doses of Haldol are needed in the "Bartster" household.....

You are not nearly as amusing as you appear to think that you are. This kind of misrepresentation is why I generally ignore you unless I am bored.


Oh, I'm not misrepresenting you. This is your stated opinion, which you've repeated numerous times. My point is that your opinion is completely wrong (and the maladministration would be torn a new one if they had the balls to suggest it as being the settled law ... which may explain why they diverge from you here, "Bart", and haven't done so).

Yoo, Glazier and I were were talking about the rights of captures under interrogation pursuant to the international law of war, not the Hamdan rewriting of habeas corpus, the UCMJ and Geneva Conventions which lasted less than a year.

As explained before, Hamdan (and Rasul) is still good law (see also a bit further up in the thread).

But you misinterpret Yoo here. He's not saying (outright) than detainees may be shot at will. What he was saying (somewhat disingenuously) was that enemies could be killed on the field of battle, a little torture (after capture) should not be a big thing [he was also suggesting the "24" theory that the lives of millions of civilians saved in thwarting a plot makes up for the less benign evil of a little torture here and there to "baddies"; a topic for a different time although I covered it on my blog a while back]. But had he claimed outright that since they could be shot on the battlefield, they should also not complain if they're shot post capture, he would have garnered the same opprobium and scorn that you're getting here.

Cheers,
 

"Bart" DePalma:

This kind of misrepresentation is why I generally ignore you unless I am bored....

Oh, so I was "misrepresent[ing]" you here, and that's why you've never responded. IC. ROFLMAO......

Cheers,
 

"Bart" DePalma [to RandomSequence]:

You are free to make a more apt comparison if you can find one. Calling my analogy "grotesque" or "absurd" is not a rebuttal, it is simply an ad hominem attack.

No. Calling you "grotesque" or "absurd" weould be ad hominem (regardless of the accuracy of any such description). Referring to your argument as such is a perfectly valid observation.

Cheers,
 

"Bart" DePalma:

Read the Geneva Conventions definition of a combatant eligible to receive POW rights. The definition is a combination of group and individual responsibilities. If a soldier of a signatory nation of the Geneva Conventions fights as a civilian, he is an unlawful combatant as surely as a fighter in al Qeada doing the same thing.

Nonsense. To begin with, the Geneva Conventions never even use the words "unlawful combatant".

Cheers,
 

"Bart" DePalma:

Explain why we should reward and thus encourage an enemy which either personally tortures and then murders our captured soldiers ....

You might ask whether the Japanese tried, sentenced, and hanged as war criminals feel they were "rewarded".

... or innocent civilians or indirectly murders civilians by dressing as and hiding among civilians and drawing our fire onto them?

Have you told our CIA and SO forces this?

Cheers,
 

This is what can happen when you create an arguement from a base which is false.

It is a false assumption to believe that killing someone is necessarily less moral than torturing them. This places murder at the pinnacle of the worst a person can do, and has somehow arrived at the idea that anything below that is acceptable.
Using Yoo's logic, one could argue that his logic means that it would be more moral to stop all capital punishment, and introduce endless torture as punishment, as it is the lesser of the two evils.

Numerous other people have pointed out that this includes slavery, paedophilia, rape etc etc which by Yoo's false base, becomes acceptable.

The other incredibley false base assumption is that torture provides reliable information. It has been proven not to.
In isolation, the arguement that to torture one is justifiable in order to save 10,000 may appear sound. However, How many can you acceptably torture with a false result before getting some real information?
Is 9,999 brutally tortured without value to get 1 torture victim's correct info to save 10,000 ok?
Will the anger & hate created from the 9,999 tortured unjustly create more instances of terror where another 10,000 will be at risk?

If torture is acceptable, would torture be an acceptable *start* of an investigation to determine whether there is a threat in the first place?

Quite frankly, Yoo is a sociopath. A dangerous one.

=my2c
BC
 

The historical reasons for reciprocity are two-fold: 1) So that European colonial powers could avoid applying civilized standards to nations in the periphery and 2) to pressure colonial powers outside the conventions to join them.

Bart: Please.

The laws of war were mainly written by Europeans who were setting rules for their own frequent fratricidal wars against one another. These rules were selectively or not applied at all to non Europeans.


Poor reading comprehension? You have just summarized exactly what I said as 1. The original European laws of war were crafted to cover their own fratricidal wars, and not their colonial wars - which today we recognize as a monstrous breach of the rights of man, proclaimed by those self-same nations and which are the underlying justification for their legal codes.

Bart: Read the Geneva Conventions definition of a combatant eligible to receive POW rights. The definition is a combination of group and individual responsibilities. If a soldier of a signatory nation of the Geneva Conventions fights as a civilian, he is an unlawful combatant as surely as a fighter in al Qeada doing the same thing.

The Geneva Conventions recognize two categories: civilians and soldiers. One of the additional protocols adds partisans. In no case, are there "illegal enemy combatants". The only category close to that ambiguity are citizens of neutral countries which become involved in the fighting. Under those conventions, your choices when capturing an enemy citizen is to either declare them a
POW or a civilian. If you suspect they are guilty of a war crime, you may try them as such; if they are POWs, by court martial, and if civilians in your own civilian courts. Yes, they recognize illegal methods of combat, but they do not recognize illegal combatants - they recognize war criminals, recognized via normal due process.

These are not technical legal questions, but problems of deep substance as to the nature of contemporary human civilization.

Bart: OK, go ahead an make your argument as to why it is civilized or in the least moral to extend the benefits of POW status to unlawful enemy combatants.

Explain why we should reward and thus encourage an enemy which either personally tortures and then murders our captured soldiers or innocent civilians or indirectly murders civilians by dressing as and hiding among civilians and drawing our fire onto them?


Reward? Encourage? Does due process encourage rapists and killers? Is your respect for the principle of life, liberty and the pursuit of happiness so low?

The justification is that due process is our justification. Democracy and due process are the linchpins of our legitimacy, as a state - what differentiates us from simply one more mafia on the world stage. Your justifications for torture and extra-judicial murder sounds reminiscent of the arguments for Pinochet's death caravans in 73 - that the communist were outside the law, that their danger was so immense, that breaking a few eggs to make the omelet was justified. Or those in Argentina during the era of the desaparecidos, justifying the kidnapping of pregnant woman, stealing their infants and then throwing the women from aircrafts. That is where such thinking leads, that some are beyond the pale and unworthy of legal protection. It is inevitable under such a legal regime that those with the power to torture and execute without independent judicial review, without any process but their own consensus in the guilt of the enemy, will be corrupted and make mistakes leading to the murder of innocents.

We've already had innocent men who've been sent overseas to be tortured, or who've been kidnapped and held in secret prisons for months. "Mistakes were made." And we know that governments always go beyond what is immediately known in such regimes. Yes, by defending the torture and extra-judicial killing of "terrorists" you are in effect defending "mistakes" or individuals who go "overboard" - you are defending the murder and torture of innocent civilians.

Technicolor blood and guts indeed.

Your arguments are grotesque - the ideology projecting them actually noxious. I fail to see how anyone raised on the principles of modern civilization, of life, liberty and the pursuit of happiness, of inalienable human rights can avoid being morally repulsed. Sometimes that need be explicitly said.
 

["Bart" DePalma]: At most, these military commissions are beefed up unlawful combatant status panels....

[Arne]: Oh, I agree, to some extent....


BTW, one respect in which I agree is that these combatant status panels are in fact unlawful.

Cheers,
 

Bart: the MCA's establishment of a formal system of military commissions for unlawful enemy combatants for the first time in our history indicates to me that the military is no longer free to execute unlawful enemy combatants without going through a military commission.

Of course, for most of US military history, such people would have gone through a general courts-martial with 5-13 officers attending. (see Section 2 of the Articles of War)
 

PMS_Chicago:

Of course, for most of US military history, such people would have gone through a general courts-martial with 5-13 officers attending. (see Section 2 of the Articles of War)

Thanks for the info.

Cheers,
 

PMS_Chicago said...

Bart: the MCA's establishment of a formal system of military commissions for unlawful enemy combatants for the first time in our history indicates to me that the military is no longer free to execute unlawful enemy combatants without going through a military commission.

Of course, for most of US military history, such people would have gone through a general courts-martial with 5-13 officers attending. (see Section 2 of the Articles of War)


Really?

Please give us a link to the provision of the Articles of War which you contend grants unlawful enemy combatants a courts martial and perhaps some examples of these courts martials.
 

RandomSequence said...

The historical reasons for reciprocity are two-fold: 1) So that European colonial powers could avoid applying civilized standards to nations in the periphery and 2) to pressure colonial powers outside the conventions to join them.

Bart: Please.

The laws of war were mainly written by Europeans who were setting rules for their own frequent fratricidal wars against one another. These rules were selectively or not applied at all to non Europeans.

Poor reading comprehension? You have just summarized exactly what I said as 1. The original European laws of war were crafted to cover their own fratricidal wars, and not their colonial wars...


Huh?

Are you saying that the reason the Europeans required reciprocity in the laws of war they applied to wars with other Europeans in order to deny any laws of war whatsoever to non-Europeans?

Bart: Read the Geneva Conventions definition of a combatant eligible to receive POW rights. The definition is a combination of group and individual responsibilities. If a soldier of a signatory nation of the Geneva Conventions fights as a civilian, he is an unlawful combatant as surely as a fighter in al Qeada doing the same thing.

The Geneva Conventions recognize two categories: civilians and soldiers. One of the additional protocols adds partisans. In no case, are there "illegal enemy combatants".


You are changing the subject and I presume are conceding the point.

As to your new argument, an unlawful enemy combatant is simply one who does not fall under the definition of a combatant who falls under the law of the Geneva Conventions. This is a default definition.

If you suspect they are guilty of a war crime, you may try them as such; if they are POWs, by court martial, and if civilians in your own civilian courts.

Perhaps, I missed this section of the Geneva Conventions. Where does the Geneva Conventions require that the US provide Courts Martials to unlawful enemy combatants (as I have defined the term above)?

Bart: OK, go ahead an make your argument as to why it is civilized or in the least moral to extend the benefits of POW status to unlawful enemy combatants.

Explain why we should reward and thus encourage an enemy which either personally tortures and then murders our captured soldiers or innocent civilians or indirectly murders civilians by dressing as and hiding among civilians and drawing our fire onto them?

Reward? Encourage? Does due process encourage rapists and killers?


Exactly how can you argue both that the rights of due process have value and the extension of those rights does not reward foreign unlawful enemy combatants?

And yes the various due process rights we extend to civilian criminal defendants do reward criminals, a not unsubstantial number of whom escape justice because of these rights. Our society accepts this drawback in the name of fairness to our People.

However, we have not extended civilian due process or the lesser POW rights to unlawful enemy combatants during wartime.

In war, you can kill the enemy at will on the battlefield. The law of war suspended that general rule for captures which follow the laws of war in order to encourage the protection of captures and civilians. Extending POW privileges to those who barbarically violate the laws of war removes the encouragement to follow the laws of war.

Your arguments are grotesque - the ideology projecting them actually noxious. I fail to see how anyone raised on the principles of modern civilization, of life, liberty and the pursuit of happiness, of inalienable human rights can avoid being morally repulsed. Sometimes that need be explicitly said.

To summarize, the US should extend the rights of POWs and civilian criminal defendants to terrorists because you think we should.

This is an opinion, not an argument. I will presume that you cannot defend this opinion.
 

"Bart" DePalma

Please give us a link to the provision of the Articles of War which you contend grants unlawful enemy combatants a courts martial and perhaps some examples of these courts martials.

"unlawful enemy combatants" is a neologism of your (and Dubya's) own construction. The Articles of War also don't provide for courts martial for "aliens from Betelgeuse" (at least not specifically) or "people of a sinister persuasion". Are all lefites just SOL?

Cheers,
 

"Bart" DePalma says:

As to your new argument, an unlawful enemy combatant is simply one who does not fall under the definition of a combatant who falls under the law of the Geneva Conventions. This is a default definition.

For the third (or is it fourth or fifth?) time, this is not correct. See the Commentaries to the Geneva Conventions.

Cheers,
 

Here's Common Article 3:

Art 3. 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:
(1) 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 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. 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;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Cheers,
 

"Bart" says something that is flatly false:

However, we have not extended civilian due process or the lesser POW rights to unlawful enemy combatants during wartime.

The guarantees under the Gevena Conventions to POWs are greater than those for detained civilians. It's a fact; you can look it up.

Cheers,
 

Bart: Are you saying that the reason the Europeans required reciprocity in the laws of war they applied to wars with other Europeans in order to deny any laws of war whatsoever to non-Europeans?

Umm, yes. That clearly was one goal, among others. It's a bit difficult to just come out and say "these rules only apply to whitey." That would undermine the justification of colonialism, which was that the "lesser races" were being raised via colonialism to the status of "honarary whites". See the history of Japanese international relations.

It's a trivial exercise to show that the laws of war in general were written so as to exclude certain categories so as to allow the colonial powers free hands in their empires. That, however, does not imply that those exclusions are compatible with civilization. Our principles are simple: life, liberty and the pursuit of happiness. Those are universal principles applying to all human beings and imply due process. Any laws or legal systems which disregard it is illegitimate under our very justification for existence as a nation. The rest of your arguments are strictly irrelevant, and simply noise.

Now, whether affording rights are a benefit to the criminal - I just can't believe that you have the temerity to advance that. We do not give criminals rights primarily for their sake, but for ours. We do so to guarantee them to ourselves. You may be willing to sacrifice due process and trust in the unitary executive of the US, or some other country, to never abuse their discretion. I will not do so: I remember history. I trust not a saint with that power.

On your "point" regarding enemy combatants: look, just read the Geneva conventions, particularly part IV, articles 63 on. For Afghani nationals, there are strictly two categories: POWs and civilians. We may try individuals accused of war-crimes (such as illegal combat) by following due process. Anything else is in and of itself a war-crime.

What you may have a technical point on, but have not advanced, is that nationals of neutral countries are not protected by the Geneva accords - they have no explicit protections, but are supposed to be protected by the normal international mechanisms of state relationships.

However, that is fundamentally irrelevant because the question at hand goes beyond the functioning of the international system to the functioning of the United States. If we wish to function like a petty third-world dictatorship, then you're right - kill 'em all, let god sort 'em out. If we want to avoid descending into the madness where political officers, on their own accord without checks and balances (and no, four year elections are not sufficient) can torture and execute those they deem enemies, we can not allow these acts against even our worst enemies. These things are illegitimate by the nature of our state, in the same way that crimes like genocide are criminal whether or not the organization committing them are signatories to relevant treaties.

Whether Pinochet, for example, was technically within his rights to execute civilians by declaring it so, is irrelevant - these rights to due process (life, liberty and the pursuit of happiness) are inalienable. Remember that word - inalienable. If the law alienates these rights, then the law and her masters are the criminals.

That is what was at the heart of Nuremburg - there are principles of civilization, however you try to game the system, and whatever illegitimate "authorization" you may have. If we are not held to the standard of civilization, then what is our justification for trying the Al-Qaeda monsters? We have none, other than brute force. Attempting to find legitimacy for such acts is morally revolting in and of itself, at the level of Al-Qaeda's sophistries. I will not reject civilization - but you clearly have.
 

The issue of "illegal enemy combatant” really is key to this discussion.

The category of "illegal enemy combatant” forms a normative basis on which a utilitarian interpretation of international humanitarian law can proceed. The legitimacy of the "illegal enemy combatant” construct is as self-evident as the moral difference between terrorists who kill with airplanes vs. Airmen who kill from airplanes.

Airmen and terrorists both kill civilians, if they are ordered to do so. The state has the legal right to advance its interests through violence even though it may cause the deaths of innocent civilians. Terrorists do not have this right, because they do not act in the interest of a state.

The state has a moral and legal right to use force to advance its interests. The violence of the stateless is illegitimate.

Why is this so? Because morality subsists in the existential power of the state, not in the subjective desire of the weak for justice.
 

Mark.rothschild,

Doesn't that conflict with the legitimacy of the state constructed upon the individual? From a God's eye view, a prescriptive political system that is coextensive with a descriptive system of the power of the state may make for a reasonable analysis.

However, that power claims to be based on democratic and individualist legitimacy. Therefore, the desire for justice of the weak may not be directly efficacious in defining morality, but that power structure is dependent on the consent of the weak for its stability.

In other words, the existential power of the state is not disjoint from the desire of the weak for justice, but at least under current doctrine, that power is partially built upon the desire for justice. The line between state and rebel is not clear, and depends on the efficacy of the state in defining the rebel. For its own continued stability, the state has an interest in at least creating the appearance of due process in its treatment of the rebel, and not simply revealing its naked power, which would then undermine one of its claims of legitimacy over the rebel (and therefore the consent that undergirds that naked power in the long term)
 

RandomSequence, You are correct, the state is self-interested in creating the appearance of justice by cloaking its naked power in mumbo jumbo.

Illegal enemy combatants have been called immoral. Another poster implied above that “terrorism” differentiates the illegal enemy combatant from the legal enemy combatant – but one does not become an “illegal enemy combatant” simply by grossly violating the laws of war. Military or government officials who plan and carry out major war crimes are not “illegal enemy combatants”.

Isn’t an illegal enemy combatant simply a stateless combatant? If so, an illegal enemy combatant has no “rights” merely because he has no state.

The moral opprobrium cast in their direction is window-dressing. Their crime is their powerlessness – namely, their statelessness.
 

Mark,

Additionally, the state is part of a state system. In particular, we are signatories to the international convention of human rights, which binds us insofar as the UN system is actually efficacious as a state system. So even the most outcast rebel is part of a "state". It would be foolish for a state to simply assume that the international system is completely toothless - it works slowly, but so does a river in carving a canyon.
 

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