Friday, September 22, 2006
Legal Realism 101 and the McCain Capitulation
One of the first things contemporary law students learn is that one cannot separate "rights" from "remedies." This basically goes back to Oliver Wendell Holmes' argument, made most concisely in "The Path of the Law" (1897) that a "bad man" interested in knowing what "the law" is will be concerned not with "the law on the books" (Roscoe Pound's term), but, rather "the law in action" (ditto), which means, practically speaking, a "prediction" that the iron fist of the state, usually operating through courts, will be brought to bear if the "bad man" violates the law. If there is in fact no iron fist, then, for the "bad man" at least, there is no law, for there is no cost at all to violating it and the "bad man," by Holmesian definition, is a pure Chicago-type economist concerned only with calculation of costs (the "payment" exacted by the state) and benefits (the gains for one's actions).
Bush's concerns about the prosecution of CIA interrogators may also have something to do with the reversal of his position on the International Criminal Court a couple of years ago. His administration originally made an effective argument that the ICC was a flawed vehicle with no real system of checks and balances or system of appeal in place, thus opening the possibility of political bias in its approach to prosecution of war criminals based on who sat upon the commission. Later, due to continued international and domestic criticism, the Bush administration quietly abandoned this position and signed us on to the ICC without demanding that it reform.
The premise of the ICC (to my knowledge) is that they only prosecute war criminals if the country to which the accuse belong are incapable or unwilling to try them. If the U.S. did not prosecute CIA interrogators, it would fall on the ICC to do so. I suspect that Bush realizes this and is fighting the anti-terror bill in an attempt to avoid this process and hide the fact that he signed us into a bad system for politically expediency.
I am failing to see the fundamental reshaping in the law to which you refer.
The subjects of this bill are wartime foreign enemy combatants in civilian clothing whose method of fighting is the mass murder of civilians.
I am unaware of any time in our history when wartime foreign enemy combatants of any type were ever extended US constitutional rights.
Generally, enemy combatants fighting in civilian clothing or US uniforms were summarily executed for most of our history through at least WWII when we executed SS wearing our uniforms during the Battle of the Bulge. There was no right to trial. Due process was a battlefield determination that they were enemy combatants.
The benefits of the Geneva Conventions were intentionally limited to those combatants who themselves followed the requirements of the Geneva Conventions. The purpose of barring combatants from fighting dressed as civilians while hiding amongst civilians was to spare civilians as much as possible from being mistakenly targeted as combatants. To reward combatants who commit war crimes by violating this prescription against fighting as civilians completely undermines the purpose of the Geneva Conventions and places civilians in danger. Therefore, the argument that the benefits of the Geneva Conventions apply to illegal combatants like al Qaeda is both wrong and dangerous.
The only change I see here is the abandonment of the Vietnam policy of granting illegal combatant VC Geneva Convention protections under the vain hope that the enemy would reciprocate. In fact, none of the enemies we have fought have extended Geneva Convention protections to our troops which fall under the requirements of those conventions. Therefore, the utilitarian argument that illegal enemy combatants should receive Geneva Convention benefits to which they are not eligible in the hope that they will be nice to our troops has no merit.
In a nutshell, the US is returning to the legal status quo prior to Vietnam.
The idea that a professor would write a post even comparing the current administrtaion with the Fuehrer and his band of killers is apalling, but not surprising. It is his mindset that perfectly explains why the left has lost the last few elections and will continue to lose in the future.
Bart DePalma had it exactly right.
Unfortunately for the Professor, the majority of the public could not care less what happens to AQ terrorists. Quite frankly, our techniques such as waterboarding, the belly slap, the attention grab, sleep deprivationa nd forced listening to Christina Aguilera are nothing compared to what real torture is.
McCain is a loser. Anyone who graduates 895 out of 900 in his navy class(look it up), that is not even in the 1st percentile and gets shot down almost immediately after enetering combat is a miltary failure. Who cares what he has to say? I certainly don't.
Seeing the libs whine over this a pathetic.
There was time when this country knew how to fight wars. When men like Roosevelt and Truman ordered the mass killing of civilians on a scale that makes W look like Ghandi by comparison. Yet I've never read one post on here about how they had no respect for law or human rights or anything like that.
I'm glad these programs will continue.
My only regret is that the videotape of Ramzi BinAlshib screaming like a baby hasn't released. Or of KSM being waterboarded, I know I'd like to see it.
One doesn't know whether "Sarah Weddington" is in fact a fascist or simply writing a satific posting pretending to be one. I respectfully suggest that if she is serious, and if she represents even a reasonable percentage of contemporary Americans, that she (and they) are greater threats to the maintenance of the United States as a "city on a hill" than any of the terrorists against whom such policies are being defended.
I believe that arguing whether waterboarding constitutes "real" torture is a bit like arguing Holocaust denial. Anyone who believes it isn't (and that the Holocaust didn't occur) is simply depraved. (Waterborading is in effect the drowning of a person, pulling him out of it at the last instant and then threatening to do it again if the relevant information isn't forthcoming.)
Bart de Palma raises serious points that deserve serious answers. I will stipulate that non-uniform-wearing SS were summarily executed and not given POW status during WWII. (I have no read the relevant history.) I also strongly suspect that there was far more than "probable cause" to believe that the persons identified as non-uniform-wearing SS were in fact non-uniform-wearing members of the SS. One of the obvious problems with the American policies at present is that there is often little or no evidence that the persons defined as "the worst of the worst" were more than unlukcy people in the wrong place at the wrong time. (I concede, incidentally, that this argument applies mainly to the poor wretches at Abu Ghraib, most of whom were declared by the Pentagon itself to be minimally, if at all, threatening, or to Guantanamo.) The "high-value" suspects held by the CIA are, quite likely, "the worst of the worst." At that point, we really have to decide what kind of country we are.
I agree, incidentally, that it is probably a vain to hope for "reciprocity" from Al Qaeda. This, of course, raises the most fundamental philosophical issue: Do we refrain from torture simply as part of a utilitarian "deal" or do we do so (assuming we in fact do so) because of a basic commitment to a political/moral philosophy that declares that even the "worst of the worst" retains some minimal body of rights simply by virtue of showing up in the world. (One might read the Declaration of Independence as articulating such a theory with regard to its evocation of "inalienable rights.) At the end of the day, as I've written in the book I edited, Torture: A Collection, I am a reluctant utilitarian (as is Michael Walzer), in fact willing to countenance torture under extremely restricted circumstances. But this requires that one have great trust in the people proposing to define what those circumstances are. As has no doubt become apparent in earlier posts, I have no such confidence in those running the current Administration inasmuch as all too much of their behavior is explained by the desire to be re-elected. One justification for Dershowitz's idea of "torture warrants," however (justifiably) troublesome the idea, is that an independent federal judge, presumptively with no further political ambitions--one could draw the pool from retired Supreme Court justices and senior circuit court judges, for example--would determine whether the situation was sufficiently dire as to justify deviating from what has become the almost paradigmatic norm of human rights.
The quackery of the professor's reply speaks for itself.
If it wasn't so sad, it would be funny.
A funny thing that is never mentioned is, why would guys like KSM fear waterboarding? Over and over again we hear that they're ready to die for Allah, that they love death and welcome it. If that's the case, why should he be afraid of drowning of the feeling of imminent death? If anyhing, we;d be doing him a favor. Keeping him alive is the real torture, or so we've been led to believe.
I respectfully suggest that if we had custody of KSM on 9-10-2001 and we needed to sic fire ants on his genitals, dunk him in sulfuric acid, or waterboard him in order to find out what was going to take place the next day, more than 50% of the country would wholeheartedly approve. And if the professor thinks we're fascists, that's his problem.
I've yet to hear the professor's strategy for interrogation. How does he propose we get information out of them?
Other than name, rank and serial number what can we do? And if KSM on 9-10-01 just said "I'm not talking", should we have just said, "ok, we tried, guess there's nothing we can do".
And to compare waterboarding, cold rooms, standing up, sleep deprivation and belly slapping to the very real torture that is disposed every day around the world is an insult to those who have suffered real torture.
I reckon there are milions around the world who would jumo at the chance to be xposed to the above tactics in place of the real torture they're subjected to on a daily basis.
The professor asks "what kind of country are we"?
I submit we're the country that killed millions of German civilians, among them many women and children, that incinerated Japanese children without flinching and then celebrated it at the PX the next day.
We're the country that so utterly destroyed the Empire of Japan that they forever forswore the war option and had their God kneel before us in supplication.
We're the country that I'd hope will kill every last man, woman and child in the enemy camp if it leads to victory. The country that will so destroy them that, like Japan and Germany before them, the idea of committing violence against the US is so unthinkable as to be impossible.
But more to the point, I'd hope we're the country that doesn't get our panties in a wad over cold rooms and standing up and loud music and belly slapping and attention grabbing to the point that the liberals in this ocuntry would like us to.
I know what type of country the liberals want us to be. And I'm thankful that their vision has been defeated the last 2 elections.
I REFER ALL OF YOU TO THE JURIST ESSAY BELOW OF JORDAN PAUST AN AMERICAN GIANT IN THE FIELD OF INTERNATIONAL LAW AND MILITARY LAW.Please read this.
Subject: RE: My forthcoming JURIST essay re: Detainee Bill "Compromise"
Here it is:
To: ASIL Forum
Subject: RE: My forthcoming JURIST essay re: Detainee Bill "Compromise"
DRAFT for JURIST:
The Republican "Compromise" on Detainee Treatment Would Compromise
the Safety of U.S. Interrogators
Congressional adoption of the recent "compromise" between three Republican
Senators (McCain, Warner, and Graham) and President Bush does not provide
proper legal guidance to U.S. interrogators and adherence merely to its
standards would place the United States in violation of common Article 3 and
other provisions of the 1949 Geneva Conventions (such as Articles 1, 146-147
of the Geneva Civilian Convention), not to mention similar provisions in
several other international treaties and instruments and customary
international law. Those who would authorize, abet, or implement the
"compromise" language in violation of common Article 3 (for example, CIA or
U.S. military personnel) would be subject to criminal and civil sanctions
outside the United States in any foreign forum and in certain international
courts. No Act of Congress would change this result. As those involved in
the "dirty war" interrogation tactics in Argentina and Chile have learned,
even comforting legislative limits and domestic immunity can change.
It was pointed out in a previous Forum essay that Justice Stevens, writing
the opinion of the Supreme Court in Hamdan v. Rumsfeld (2006), warned that
"at least one provision of the Geneva Conventions ... applies" to the
Administration's detainees, common Article 3. In his concurring opinion in
Hamdan, Justice Kennedy emphasized that "[t]he Court is correct to
concentrate on one provision of the law of war that is applicable ... Common
Article 3." He then noted that common Article 3 "is part of a treaty the
United States has ratified and thus accepted as binding law." As noted
also, every violation of the law of war is a war crime, punishable here or
abroad in any country and in international fora presently operative or
created in the future under the principle of universal jurisdiction. A
denial of the rights and protections under the Geneva Conventions (such as
those expressly set forth or incorporated by reference in common Article 3)
is a violation of the Conventions and a violation of the Conventions is a
war crime. Certain violations of Geneva law are not merely war crimes but
are also "grave breaches." These include "torture," "inhuman treatment,"
and "wilfully causing great suffering or serious injury to body or health."
Another provision of treaty-based laws of war that also reflects customary
international law is quite relevant in this regard. It is set forth in
Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting
the Laws and Customs of War on Land, which reads: "it is especially
forbidden ... [t]o declare abolished, suspended, or inadmissible in a court
of law the rights ... of the nationals of the hostile party." Similarly, as
part of the law of war, a violation of the Hague Convention is a war crime
and acceptance of the Republican compromisers would be do just that.
What specific forms of treatment does common Article 3 guarantee and
prohibit? First, the article requires that all detainees "shall in all
circumstances be treated humanely," not merely whenever the U.S. Executive
prefers to do so and not merely whenever domestic U.S. constitutional
amendments or criminal laws against "torture" happen to coincide with some
common Article 3 standards. Second, the article prohibits, "at any time and
in any place whatsoever," "torture," "mutilation," "cruel treatment,"
"outrages upon personal dignity," "humiliating" treatment, and "degrading"
treatment. A core of generally agreed meaning and definitional factors
operate in various judicial fora for imposition of criminal and civil
responsibility with respect to each term or phrase despite the possibility
of a lack of generally agreed meaning at the extreme outer edges of
theoretically possible meanings - a circumstance well-known to lawyers and
judges who interpret words such as "due process," "free speech," and the
like in constitutions, statutes, private contracts, and other instruments.
Addressing Article 4 of the Statute of the International Criminal Tribunal
for Rwanda (ICTR), which incorporates all violations of common Article 3 and
lists several of its proscriptions (including torture, mutilation, outrages
upon personal dignity, humiliating treatment, degrading treatment, rape, and
any form of indecent assault), the Trial Chamber in The Prosecutor v. Musema
(2000) ruled that the list "is taken from Common Article 3 of the Geneva
Conventions and of Additional Protocol II" and "comprises serious violations
of the fundamental humanitarian guarantees which ... are recognised as
customary international law" (emphasis added). Thus, if Congress wishes to
focus on "serious" violations, all of those listed in common Article 3 are
More particularly, the Trial Chamber ruled that humiliating and degrading
treatment includes "[subjecting victims to treatment designed to subvert
their self-regard," adding: "motives required for torture would not be
required." "Indecent assault," the court affirmed, involved "the infliction
of pain or injury by an act which was of a sexual nature and inflicted by
means of coercion, force, threat or intimidation and was non-consensual."
As documented in my article Executive Plans and Authorizations (available at
http://www.columbia.edu/cu/jtl/Vol_43_3_files/Paust.pdf ), other
international courts and tribunals have provided guidance concerning the
meaning and definitional factors with respect to cruel, inhuman, and
degrading treatment (id. at 845-46), and so have several U.S. courts (id. at
821-22 n.40). For example, while addressing five British interrogation
tactics used in the 1970s (wall-standing, hooding, subjection to noise,
deprivation of sleep, and deprivation of food and drink), the European Court
of Human Rights affirmed that inhuman treatment occurred with respect to a
combination of some of the tactics that "caused, if not bodily injury, at
least intense physical and mental suffering." The five "techniques were
also degrading, since they were such as to arouse in their victims feeling
of fear, anguish and inferiority capable of humiliating and debasing them
and possibly breaking their physical or moral resistance." Another European
decision in 1999 expressly reaffirmed the recognition that treatment is
degrading if it is "such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them." A U.S.
court has also recognized that "cruel, inhuman, or degrading treatment
includes acts which inflict mental or physical suffering, anguish,
humiliation, fear and debasement" and that being "forced to observe the
suffering of friends and neighbors ... [is] another form of inhumane and
degrading treatment." As documented in my article, the Committee Against
Torture (which recognized that the putative U.S. reservation to the
Convention Against Torture (CAT) attempting to limit U.S. obligations under
the CAT to merely those operative under three U.S. constitutional amendments
is inconsistent with the object and purpose of the treaty and void as a
matter of law) affirmed that seven interrogation tactics are either torture
or cruel, inhuman or degrading treatment criminally proscribed by the
Convention: (1) restraining in very painful conditions, (2) hooding under
special conditions, (3) sounding of loud music for prolonged periods, (4)
sleep deprivation for prolonged periods, (5) threats, including death
threats, (6) violent shaking, and (7) using cold air to chill.
Language in the Republican compromise fails to reflect the international
legal standards recognized in international and U.S. domestic courts and
tribunals. First, several definitions in the draft are limited to others
that are found in prior legislation, even though the Committee on Torture
noted that prior U.S. legislation is inadequate and, thus, this scheme will
not protect U.S. interrogators. Second, contrary to some of the standards
noted above, some of the definitions in the draft are far too limiting and,
thus, do not adequately warn U.S. interrogators regarding what the actual
international legal standards are. Third, the draft attempts to abet this
problem by requiring that "[n]o foreign or international sources of law
shall supply a basis for a rule of decision ... in interpreting the
prohibitions enumerated" in the draft. Thus, U.S. interrogators are
needlessly placed in harms way if they merely follow the standards in the
draft. In particular, contrary to international precedent, the draft
attempts to add limiting words such as "intended to inflict," "severe," and
"serious" to a definition of cruel or inhuman treatment. Instead of a
prohibition of "mutilation," the draft seeks to limit one form of mutilation
to "permanently disabling." The draft also attempts to limit "serious
physical pain or suffering" by excluding "cuts, abrasions, or bruises" not
amounting to "a burn or physical disfigurement" and excluding serious pain
or suffering not involving "significant loss or impairment of the function
of a bodily member, organ, or mental faculty," or "extreme" physical pain,
or "a substantial risk of death." Thus, the draft does not cover all forms
of serious injury to body or health, mutilation, and cruel treatment. There
is no attention in the draft to Geneva prohibitions of "humiliating"
treatment and there is only one portion of the draft that addresses
"degrading" treatment - and it does so in a manner that also fails to
provide adequate legal guidance to U.S. interrogators, since it attempts to
limit its coverage of "cruel, inhuman, or degrading treatment" to merely
that prohibited by three domestic U.S. constitutional amendments. As noted,
the Committee on Torture has rejected such an attempt. Moreover, there is
no such attempted reservation to the Geneva Conventions and, if there had
been, such a putative reservation would also be void ab initio as a matter
of law. Constitutional amendments simply do not cover all cruel, inhuman,
degrading, and humiliating treatment proscribed under the laws of war and
human rights law. Moreover, constitutional amendments do not even reach all
private perpetrators, whereas the laws of war and human rights law can reach
private perpetrators (as affirmed in several U.S. cases). Using a void
putative amendment to one treaty in an attempt to limit the reach of several
others would be outrageous and would not provide adequate guidance to those
involved in interrogation.
For several reasons, Senator McCain is correct that this is not about al
Qaeda, this is about America.
Jordan J. Paust
is Mike & Teresa Law Center Professor at the University of Houston and a
former U.S. Army CPT, JAGC and member of the faculty of the JAG School
(1969-1973). One of his writings addressing the impropriety of procedures
of the Bush military commission was cited by the Supreme Court in Hamdan.
Jordan J. Paust
Mike and Teresa Baker Law Center Professor
University of Houston Law Center
100 Law Center
Houston, TX 77204-6060
What one can lift may at times seem small,
but together we can lift humanity
For all those who sit there advocating allowing our troops to use torture I'm a bit curious how many of you served or are actually serving in the U.S. military. Because the question that concerns me on this issue is not what actually happens to al-Qaeda detainees themselves, but what happens 10 or 20 years down the road to the soldiers who are ordered to interrogate them in methods contradictory to the Geneva Convention. Those soldiers are following the orders of their commanding officers and civilian leaders and face repercussions if those orders are not obeyed. But in 10 or 20 years the current leaders will be gone and the new ones may very well decide that our soldiers should be held accountable for their actions today, the same as we hold Nazi foot soldiers accountable for what they were ordered to do in World War II. It's a horrible payoff to give to people who risk their lives to protect our freedoms. From many of the opinions I've seen posted on this thread, few seem to consider this at all. The Geneva Convention is a limited document and has its problems, but it serves an important purpose in warfare, which is to provide our troops a general moral compass to insure that they know which actions on the battlefield will be considered acceptable or unacceptable, to keep our troops from being made the political scapegoats of their leaders' failures. Bush's redefining of the Convention strips our troops of that protection.
It's very easy to pontificate about how torture is such an important and indispensable tool when you're not the ones who have to deal with the consequences of inflicting it. Our military's top lawyers opposed the president's measure because they recognize what a bad proposal it is for these very reasons. They aren't being "liberal" or weak and they aren't caving to "political correctness", they're just looking at the bigger picture. The President isn't. Those who disagree are welcome to join the Army (as I did) and test the waters themselves if they think the president's stance is such a wise one.
As for the unduly harsh comments from some about Sen. McCain, I don't agree with the man myself on his bill, but there's absolutely no reason to demonize him and insult the service he has rendered. The man's done a hell of a lot more to serve his country and suffered more for it than most of his critics. Unless you've done more than he has, especially in wartime, as far as I'm concerned you can shove your ad hominum "loser" comments and shut the hell up. And yes, "Sarah Weddington", I mean you.
At that point, we really have to decide what kind of country we are.
What constitutes "torture" is as much in the eye of the beholder as what constitutes "cruel or unusual punishment." This is not a moral absolute, it is a policy decision.
I am comfortable as a combat veteran and a lawyer with the line drawn in the current legislation defining torture as the intentional infliction of severe pain. I will not follow al Qaeda across that line into the barbarities it has inflicted on our soldiers and civilians.
However, as Sherman so aptly stated: "War is cruelty and you cannot refine it." Compared to the myriad of truly ghastly ways our soldiers (and now our civilians) are dying in this war, I simply have very little sympathy for the transient panic and discomfort inflicted on the likes of Khalid Sheik Muhammad through water boarding or the like.
I realize that you and others may have a more expansive view of what constitutes torture. That doesn't make either you or I wrong or immoral. We simply disagree on a matter of conscience.
In any case, I have a feeling this legislation is not the final word and is instead just another step in a national debate on this subject.
For all those who sit there advocating allowing our troops to use torture I'm a bit curious how many of you served or are actually serving in the U.S. military. Because the question that concerns me on this issue is not what actually happens to al-Qaeda detainees themselves, but what happens 10 or 20 years down the road to the soldiers who are ordered to interrogate them in methods contradictory to the Geneva Convention.
To start, if you can translate the general principles set forth in the Geneva Conventions in concrete definitions of what acts are and are not covered, you are a better man than I.
However, I believe the Administration took your point about putting our soldiers in the middle of this dispute to heart several months ago. Under the new interrogation manual for the military, soldiers will not be using coercive techniques. This is now a debate over what our intelligence services can do.
I take your points and I'm in agreement with you on several of your stances. I realize that the Geneva Conventions aren't concrete. They're far from it. But they are an internationally recognized form of legislation that protects our soldiers. Independent players like al-Qaeda or Iraqi militias may not adhere to them, but nation-states generally will. That was my point. Bush's redefining of that bill strips that protection by essentially removing us from the consensus of the international community. It may have a negligible effect on this war. It will have a repercussion on future ones. Not every enemy we've faced has slaughtered all of the POWs...reciprocity is a factor.
As for your comments about the CIA, I don't consider their service to be any more indispensible than a soldier's. They're following orders as well, and they're trying to protect us as well (and thus, I'd argue, don't deserve our demonization). Bush's bill is a politically short-sighted document that sells them out as well. He signed us up to the ICC, another politically short-sighted move. The ICC has the ability to prosecute intelligence operatives as well as soldiers. What happens to those CIA employees when Bush is gone and the next administrations need to build bridges to the United Nations? Will they have to turn the contractors over to prosecution, or will they accept the hostility of the international community and refuse? This bill will eventually put us into a dilemma of having to choose between loyalty to those who served us loyally and maintaining an ability to function multilaterally in the international community. It's not a choice we want to lay on future leaders just because the rules of warfare don't appeal the current president.
Bush's redefining of that bill strips that protection by essentially removing us from the consensus of the international community.
If by the "international community" you are speaking of the EU, I completely agree that our standards are different. Are you arguing for the adoption of something along the lines of this ruling posted above?
For example, while addressing five British interrogation tactics used in the 1970s (wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink), the European Court of Human Rights affirmed that inhuman treatment occurred with respect to a combination of some of the tactics that "caused, if not bodily injury, at least intense physical and mental suffering." The five "techniques were also degrading, since they were such as to arouse in their victims feeling of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance."
This standard is utterly unworkable. The purpose of interrogation of any type is to break the target's "physical and moral resistance" to answering your questions. Standard police interrogation in this country often attempts to instill feelings of "fear, anguish and inferiority."
It may have a negligible effect on this war. It will have a repercussion on future ones. Not every enemy we've faced has slaughtered all of the POWs...reciprocity is a factor.
If a future enemy used the same standards against our legal combatants that we are adopting against their illegal combatants, that would be a tremendous improvement over the what was done to say John McCain by the NVA - beating, starvation, dislocating his shoulders and battering his healing broken leg.
As for your comments about the CIA, I don't consider their service to be any more indispensible than a soldier's.
This is not a legal distinction, but rather a policy decision based on the history of how combat soldiers often treat enemy soldiers after losing their own in a battle. That scene in Saving Private Ryan where they shoot surrendering Germans after suffering a slaughterhouse attack is very real.
I do not like having our soldiers, whose buddies are being killed by the enemy, having this much leeway with interrogation.
And, in the endPost a Comment
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