by hilzoy
(This is the fourth in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees. A Word doc of Graham’s speech is here.)
Two medical malpractice claims have come out of this…. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care”—Senator Lindsey Graham.
In our last post, we linked to a motion (pdf) filed by the attorney for Sami al-Laithi, alleging medical malpractice. As we said then, anyone who wants to know which “frivolous” cases Lindsey Graham is talking about should read this motion in its entirety. As before, bear in mind that none of this information would be available if Graham’s amendment had already been in force.
Al-Laithi’s motion contains a number of other allegations of medical malpractice. There are too many of them to be listed. However, a few that stand out:
* pp. 8-10 describes a Afghan juvenile with a history of mental illness. During the war in Afghanistan, he was ordered to stop (in English); he does not speak English, kept walking, and was shot in the top of his right thigh bone. He was operated on, but was not told that his bone had been broken, or that a bolt had been implanted in it. At Bagram, he was forced to walk every day for three months; “He cried and screamed from pain until he would collapse unconscious.” (p. 9) He was then taken to Guantanamo; on his arrival, he could not walk, having been strapped very tightly in the plane. He was ordered to sit cross-legged with his head touching the floor, and screamed and passed out. He was sent to isolation.
“Approximately one week later he felt something pressing the flesh around his thigh. They took him for an x-ray at the hospital and it turned out that the bolt used to hold the bone had broken. His hip was black from the decay and infection. He needed a new metal hip. When they did this operation, they made the hip replacement four centimeters too short. When this mistake became apparent, rather than operating again, they merely told him he should wear one platform shoe.”
* p. 14:
“[redacted] is from Yemen. He had an injury to his shin and the US amputated more than necessary. However, because he has refused to cooperate with his interrogators, the US military refused for two years to give him a prosthetic limb. The clinic showed him such a prosthetic several times and said that he could only have it if he talked to his interrogators.
Other prisoners who have been denied prosthetic devices unless they cooperate with the interrogators include (…) [redacted] from Saudi Arabia who was denied a prosthetic limb for more than eight months, [redacted] from Yemen who was denied a prosthetic limb for more than two and a half years, and [redacted] from Tukistan (sic) who is without a prosthetic foot to this date, after three years.”
* p. 16: One detainee reports the following:
“One mental health professional actually described to Mr. Begg how he could hang himself. She said that he could take his underwear, thread a blanket or trousers through this, and use it to hang himself. Mr. Begg has since been unable to get this image out of his mind, and it haunts him constantly. For a mental health professional to say this to a patient is the height of stupidity, irresponsibility, or sadism.”
* pp. 18-20: A prisoner was injured by a bomb, and had five operations on his shattered leg while in Pakistani custody. He was about to recieve the main operation in which his bone would be fixed when he was taken into American custody and moved to Kandahar. There he was beaten and left naked, and did not receive medical care. On his transfer to Guantanamo:
“”They gave me no medical care. They never changed the bandages. They gave me no pain-killers.” He was in Camp X-Ray screaming in pain. He was afraid of infection. Every time he asked for new bandages, the US personnel said, “Tomorrow.”
This went on for fifteen days without relief. Ultimately the wound swelled up alarmingly and the sin (sic) became discolored with a bad odor. The pain became much worse.
“One night I was crying in pain and I asked the guard to get a doctor. A translator came to me and said, ‘You get no treatment until you admit to being a terrorist.’ I said I need medication and pain killers. The translator held out some pain killers but said, ‘I’ll give you none of this until you confess.’ I said, I bleed too much. ‘Muslim blood is worth nothing’, he said.””
Eventually, he was told he would have to have his leg amputated, or else risk gangrene. He agreed, but the wound was infected, and so he had to have six more operations, cutting off a little more bone each time. A year later, the wound swelled up again; this time, the doctors discovered that they had left some cotton in the wound during the previous operations. He had three more operations as a result. A year and a half after that, “the leg got infected again with pus, and it took him six months to get medication. The doctor found that they had forgotten to take the wires out from the second round of operations. On May 27, 2004, they finally removed these. This was his eleventh operation in Guantanamo Bay.”
These are just some of the allegations contained in the Al-Laithi motion. There are others. Read the whole thing. If you really feel ambitious, you can read the government’s response, and Al-Laithi’s lawyers’ response to that (pdfs). And then ask yourself: do we really want the detainees described in these documents to have no way to make their case, to question their treatment, or to ask the courts for any sort of relief?
The real question is why does the administration and it’s apologuist think they can get away with running torture camps?
Do they think the American people have no values, ethics, virtue or understanding of what it takes for a country to earn moral authority?
“Do they think the American people have no values, ethics, virtue or understanding of what it takes for a country to earn moral authority?”
I think the way they approached the Miers nomination, for instance, speaks to this: they’ve generally tended to expect their base to support them as they utilize their communications apparatus to get out their talking points.
I also think that many of them are quite sincere in believing they are doing what is right to protect the United States. I simply disagree with their ultimate conclusions.
“I think the way they approached the Miers nomination, for instance, speaks to this….”
Whoops, forgot the second part of this: and if they can pick up some support outside their base from independents or hawkish Democrats, great — but otherwise, if there’s a strong minority of objectors, even up to 49% — screw ’em.
I’m looking forward, incidentally, to Sterling Newberry decrying all this despicably crazy rightwing stuff at “the kitty.” I’m sure Bob will let us know right away.
Nah, Gary, he’ll probably take credit for the change of tone.
I also think that many of them are quite sincere in believing they are doing what is right to protect the United States.
Maybe true, but frankly, I don’t give a crap that they sincerely believe that torture is good for protecting the US.
And what is this — torture by doctor? The carelessness is so gross as to suggest deliberate indifference by the medical providers in order to inflict harm.
Graham is a pig to then spin the protests about this medical treatment as some sort of abuse of the system by the detainees.
Why do Republicans love torture?
hilzoy, I’ll talk, I’ll sign anything, just make it stop.
Stirling, sorry. I wasn’t referring to this fellow.
hilzoy –
The link to the gov’t response is broken (I think you left off the .pdf).
OTOH it might be my computer.
Do they deny the allegations or is it all “true or not, he has not right to sue”?
Ugh — I got something, but it would be stretching things a bit to call it a document. I’ve tried again; it should be up in a minute or so.
They dispute the claims, but don’t spend much time saying why. They do argue extensively that he has no right to sue, that he hasn’t made a showing of irreparable harm, that his claims are unsworn (though, as the attorney responds, there are no notaries at Gitmo), that (my favorite) “compelling evidence indicates that the Military’s mission is to treat all Guantanamo detainees, including petitioner, humanely”, etc., etc.
Now I get a document.
Hey I need my rationalizations — where’s DaveC?
So do I, thanks hilzoy.
Incidentally, dunno if everyone saw yesterday’s LA Times story on CIA/Jordanian GID ties, or Marty Lederman’s legal analysis of Graham’s amendment, that I linked in this post linking to Katherine and Hilzoy’s post.
Thanks, as always, to youse guys for your valiant and good work, on this, as in all things.
Hey — anyone wanna go over and recommend the diary I put up on dKos, before it vanishes into the mists of history?
I don’t know what the released detainees’ legal status is, whether they would be allowed to enter the US.
But, if they can enter the US, I think the Democrats in Congress should, as part of their investigation into prisoner abuse and torture, call upon these released detainees to testify. Publically. On TV and everything.
I did, hilzoy…Why is this getting less coverage from lefty blogs than the N.Y. Times? Argh.
“Why is this getting less coverage from lefty blogs than the N.Y. Times?”
Jeanne D’Arc also took note.
Jeanne d’Arc, Majikthise, and especially Jeralynn Merritt/Talk Left have linked this.
I vaguely remember others, maybe even Rosen.
…
Torture etc has never been a high priority over at BOPNews. Not that they don’t care or haven’t posted;everybody has priorities. BOPNews is into micro-politics (actual local grunt-work) and macro trends, among other things.
…
I have decided this work of h & k stands on its own, without comment or distraction. “Admirable” is an understatement. I have made some calls, but it is discouraging that McCain voted in favor. And this, from Body & Soul
“Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her boss’s concerns this way: “Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. After all, we’re talking about enemy combatants.””
Yeah, I know. It’s just–we’re really in danger of losing here, and while I really really appreciate the people who have noticed, a lot of people and a decent # of Senators don’t seem to fully understand what’s going on here. Feeling Cassandrish.
And a week ago I thought that the McCain amendment really was the beginning of the end. Hah.
In case anyone is confused:
Etc., etc.
Isn’t there some way to get these posts into the various Senator’s hands? Surely those such as Senator Snowe do not have this information, or she could not be making such statements. Could we all bombard them with emails containing a link to these? Do you suppose anyone would click on it? How very frustrating. Frankly, if these guys did their homework (ie, read more than the executive summary), we wouldn’t even be in Iraq. Our congressmen/women (or rather their staffs) are failing to do the digging that is required to be able to make an informed vote. A pox on both their houses!!
That is one of the most upsetting things about this: a clear sense that a lot of the swing votes do not really understand what is at stake.
This, of course, is why you should not take away &*$^@@$&* habeas in a &$&@$@*%^&^@% appropriations bill after no hearings and one *^$@&^&@$^$^& hour of debate.
The problem with this site’s position is that it rewards outrageous assertions, implicitly trusting an enemy who has not shied from tactics far more irregular than white propaganda.
Further, al Qaeda knows that it cannot win by defeating the US Army, but rather must do so by defeating US morale and political support for war.
Further, the al Qaeda training manual compels its members, when captured (lesson 18), to “2. Complain [to the court] of mistreatment while in prison”
Further, by taking seriously a claim such as: “He had an injury to his shin and the US amputated more than necessary,” you are trusting not just the honesty of the claimant, but that he is skilled as a battlefield orthopedist and has had access to the patient and X-rays of same.
Further, you ignore that even if we were in the business of torturing the men at Guantanamo, generally the most important concern of a torturer is not to leave evidence of his torture on the person or body of the victim, yet these methods are inherently very visible, and yet they were used when other, cleaner methods would have proven as effective, and yet these “torture victims” were allowed to live and communicate with the other prisoners, getting their story out via Al-Laithi.
Further, you ignore that the soldiers of Guantanamo are mostly not well-versed special forces or CIA agents, and in fact have a recent history of leaking like a sieve — reporting openly on matters which are minor compared to these allegations, but which the US government would certainly not want exposed to the world, such as Koran “abuse” and threats to make a man “unclean” with pretend menstrual blood.
Despite this, you believe that these claims of extreme physical abuse, which have not been exposed by any of the many Guantanamo guards and doctors who would be knowledgeable and complicit, are evidence enough to accuse our doctors, soldiers and military and political leadership of, essentially, being evil.
In short, in the guise of antifascism, you are ironical “useful idiots” for fascism.
Al-Laithi was found not to be a member of Al-Qaeda by the CSRTs, and is definitely in a wheel chair. Nevertheless, I of course don’t know if the claims are true. How could I know? I’m sure hilzoy wouldn’t claim she knows.
I’d sure like a court to be able to look at those medical records and find out, though.
DWPitelli: what Katherine said. And note that one of the things he was petitioning for was the right to see his medical records, which had not been made available either to him, to his counsel, or to the court.
No one, of course, should assume that detainees are speaking truth, and no one is asking anyone to. The question isn’t about taking their claims at all; it’s simply about allowing them to make claims. And if we don’t do that, we can’t distinguish the innocent from the guilty. And you can’t reasonably claim they’re all guilty, since the Government has admitted that many aren’t, and has let them go.
[if we don’t allow them to make claims] “we can’t distinguish the innocent from the guilty.”
1) This is equally true (or untrue) regardless of the nature of these claims. It is untenable that making outrageous claims (such as of maiming torture) should grant rights that more moderate claims would not obtain, since the end result is merely the encouragement of outrageous claims.
2) The question isn’t whether “we” can distinguish the innocent from the guilty. It’s whether the distinguishing is to be done by the armed forces, or whether it is to be done by the federal judiciary.
I understand why “civil libertarians” would prefer the latter, but such a system is unprecedented in war, and could not possibly work.
If SCOTUS asserted such power vis a vis Guantanamo, the major effect of such a decision would merely be future prisoners kept overseas instead.
And if that did not stop SCOTUS (i.e., if they asserted global reach), then we’d see: 1) US soldiers taken out of battle and flown to US Courts for every contesting prisoner; 2) Huge costs in money, and losses in battle as we lose all our capable soldiers; 3) Enemy prisoners widely released as US soldiers can’t positively ID and remember all the men they’ve captured in battle; 4) Necessarily, more enemies shot, fewer captured.
These are of course among the reasons why every nation has for centuries had separate military systems of justice and status determination.
Remember also that historically, illegal combatants (e.g., those with no uniform, no insignia, no clear hierarchy of rank) have been summarily executed, in accordance with laws of war that have not been changed by statute or treaty. Given that, it’s absurd to decry US treatment of Guantanamo prisoners, unless it’s to complain, “why has no one been executed?”
I also think the “civil libertarians” are playing a dangerous game, in that by melding the military and civilian justice systems, they are at least as likely to weaken the rights of criminal defendants as they are to increase the rights of those held as enemy combatants. This will happen when the unwieldy system I described above becomes apparent, if it looks like it might lose us a war, especially if the enemy again succeeds in significant attacks against the US mainland or US noncombatants.
Stepping up to the plate with a defense of the indefensible, it’s DWPittelli. Ladies and Gentlemen, DWPittelli! Here to tell us why it doesn’t matter that our agents have made a paraplegic of Egyptian Sami al-Laithi, a pro-democracy English teacher in Afghanistan who had no connection to al-Quaeda. It’s wartime folks, Mr. al-Laithi should be grateful he’s alive. Ladies and Gentlemen, let’s hear it for DWPittelli! Be sure to tune in for tomorrow’s defense of the indefensible, when Blogbudsman will be talking to us about torture.
Mr. Pitelli, do you understand that if the prisoners had trials under the UCMJ, that would obviate their habeas petitions? The situation is that the DOD didn’t do much of anything to sort out the combatants from bystanders caught up in the thing until the Rasul decision last year, and only when it became clear that there were going to be habeas suits did it even bother with the half-*ssed tribunals it did hold.
They are petitioning the civil courts because the military court system is not being made available to them.
You wonder why they don’t shoot people, even if they were picked up by mistake?
There’s no danger of melding the military and civil systems — there’s always been limited habeas review from the military system, limited because of the due process protections built into the military system.
Or maybe we should all hang ourselves.
Just an update on the Graham Amendment, that assault on our constitution that I posted about some time ago. Hilary and Katherine, the two heroines of Obsidian Wings, have stayed on the job, while the rest of us wrung our
DWPittelli expresses himself admirably and seems to know what he is talking about.
(Jeremy Osmer already took care of the torture bit)
However, this statement of DWs’ bugs me: that Katherine and Hilzoy, and apparently Von, apparently engage in the act of “implicitly trusting an enemy…” etc da blah blah blah, and that they are “ironical” useful idiots for fascism. Yes, and antifascism is a guise.
Clever of Katherine and Hilzoy to don the guise of antifascism, in their inimitable ironical fashion. That is so, I don’t know, ironical.
Oddly, but well within the posting rules, these two good people, wearing the cheeky, fake garb of antifascism, completely fake out DW with equally admirable (and so anodyne) and nice answers, (for fake anti-facist facistos) especially Hilzoy’s jackbooted “what Katherine said”, which holds within it Panzer divisions wheeling toward Poland. Be very afraid.
Gary Farber was nice, too.
It’s amazing how posting rules become a muzzle on the already tightly leashed dogs of incipient fascist fake antifascist ersatz fascism, ironically speaking.
I miss the days when blogfather would come by and let us know we were ironical fascists, but in different and much more delicate thesaurus-mined words.
I thought my guise was very tricky, but DWPittelli saw right through it. Next time, I’ll appear in the guise of a Fabian.
In short, in the guise of antifascism, you are ironical “useful idiots” for fascism.
One would hope that, before someone hurled accusations of “fascism” around, they’d actually know what it meant (and then use it correctly).
I thought my guise was very tricky, but DWPittelli saw right through it. Next time, I’ll appear in the guise of a Fabian.
Nonono. To really confuse us, try the guise of a Fabio!
Anarch: beyond my talents, and my pay scale.
“One would hope that, before someone hurled accusations of “fascism” around, they’d actually know what it meant (and then use it correctly).”
One would hope that one would attempt to honestly read my post before claiming I have “hurled accusations of fascism” or implying that I don’t know what fascism is.
I accused people here of being “useful idiots” for fascism, not of being fascists. That is, they aid fascism unwittingly; their goal of melding military and civilian justice systems would certainly aid the fascist enemy abroad, and would also increase the odds of inserting authoritarian elements into our civilian justice system.
Does anyone doubt that the enemy held at Guantanamo is “fascist”? Clearly, they are not if you define the term so narrowly as to only apply to the Italian party led by Mussolini, but more usefully, an organisation is generally considered fascist (or more strictly neo-fascist) if it uses violence to attain or maintain power and to eliminate or intimidate dissidence, and its leadership is not subject to democratic removal.
So why exactly is it not proper to call al Qaeda (or the Baath parties) “fascist” or “neo-fascist” or (at least for al Qaeda) “Islamofascist”?
I agree that “guise” was a poor choice of words on my part. I do not believe that their antifascism was a mask or deliberately false front — which would be inferred from 2 of the 3 definitions I see for “guise” — but I do believe that the antifascism would (in actuality, and ironically) empower fascism.
To use Aesopian terms, they are not (as “guise” could properly be inferred) wolves in sheeps’ clothing, but rather, sheep who do not believe that there are, or could be, any wolves in sheeps’ clothing.
DWPittelli: their goal of melding military and civilian justice systems
*raises eyebrow* You’re claiming that Hilzoy and Katherine’s goal in to “meld military and civilian justice systems”? Can you actually find any evidence for that assertion outside your teeming brain?
Does anyone doubt that the enemy held at Guantanamo is “fascist”?
Since none of the prisoners held at Guantanamo Bay have had their status determined by a competent tribunal, as required by the Geneva Convention relative to the Treatment of Prisoners of War, it is in fact impossible to say which of the prisoners may constitute “the enemy”, and, where they are enemy prisoners rather than wrongfully-held civilians, if they are fascist.
I would say, however, that a government which demands the right to hold prisoners indefinitely without access to either a military or civilian justice system is far nearer fascism than those who oppose such demands. One of the basic principles of fascism is that whatever is done for the state, is right.
Does anyone doubt that the enemy held at Guantanamo is “fascist”?
Yeah. Even with your definition, you’ve got a long way to go to reach a 25 year old Yemeni who went to Afghanistan in early 2001 for the adventure of fighting in the civil war there.
[A]n organisation is generally considered fascist (or more strictly neo-fascist) if it uses violence to attain or maintain power and to eliminate or intimidate dissidence, and its leadership is not subject to democratic removal.
Surely there’s more to it than this. Are you saying that Henry IV was a fascist?
DWPittelli
Just out of curiosity, could you give us a definition of ‘fascist’, and/or ‘neo-fascist’ and/or ‘Islamofascist’? You seem to be using it as an epithet rather than a meaningful word.
Sorry, I had that on my browser and only just got around to posting it. I see you have defined it as
[A]n organisation is generally considered fascist (or more strictly neo-fascist) if it uses violence to attain or maintain power and to eliminate or intimidate dissidence, and its leadership is not subject to democratic removal.
If this is true (and I don’t agree with it, but just granting this as your definition), then for an individual to be fascist, they would have to be proven to be members of such an organization. How precisely has this been proven by the government in these cases? And if accused, how does someone prove that the accusation is mistaken?
The whole point (well, one of them) of keeping the military prisoner system separate from the civilian judiciary is that the government doesn’t have to show anything publicly, and hence, doesn’t have to show anything to the prisoner. Sounds unfair, and it certainly can be in specific cases. But the alternative includes every prisoner claiming innocence, calling soldiers from the front to testify as to his capture, calling other prisoners, communication between same, calling allies, officers, etc. This can’t work, and this is not how it’s ever been done in the past.
DWPittelli This can’t work, and this is not how it’s ever been done in the past.
The default option is to treat all prisoners as prisoners of war, with all the rights of prisoners of war. If the Bush administration wanted to treat some prisoners as other than PoWs, as self-evidently they did, it was the Bush administration’s responsibility to muster competent tribunals and determine the status of those prisoners that the Bush administration considered to be civilian criminals rather than PoWs.
The Geneva Convention relative to the Protection of Civilian Persons in Time of War then kicks in, and Article 5 of that convention says:
The right of habeas corpus is written into the US Constitution, and may only be suspended “when in Cases of Rebellion or Invasion the public Safety may require it”. As I believe others have already pointed out, neither rebellion nor invasion apply in this instance: and if the US could get through two world wars and the Cold War without needing to suspend habeas corpus, what is it about this conflict that makes it so much more dangerous to the “public safety” that it justifies the suspension of such a basic right?
i have a different view as to DWPitelli’s response.
The US likely has actually innocent people in custody. The US also likely has tortured / humiliated / mistreated actually innocent people.
Is this the price of war? Is this acceptable to you?
one more thing: POWs are to be released when the war is over. The wars in Afghanistan and Iraq are over; we prevailed. (remember Mission Accomplished?)
when do the occupants of Gitmo get to go home?
So you’re accusing the U.S. government of releasing dozens of fascists. Interesting charge.
Was Sean Baker also a fascist, by the way?
I remain distressed that the U.S. government is letting these people go:
That’s on top of the other dozens released. What do you think should be done about those in government who are releasing fascists?
“The whole point (well, one of them) of keeping the military prisoner system”
Could you define what, specifically, you are referring to as “the military prisoner system,” please?
Back to your first comment:
Oh, to be clear, I don’t have any problem with actual desiring-to-kill Islamic terrorists being referring to as “Islamofascists.” I don’t know if it’s an ideal description — probably not — but I don’t have any objection to it, either. I just object to determining that people are such via telepathy or geography, rather than, at the least, a preponderance of the evidence (a lesser standard than “beyond a reasonable doubt,” of course).
It seems to me that fascism was once (back in the day, the 1920s and 1930s) defined as the cooperation of government and corporate entities for the purpose of wielding absolute power.
Violence was merely and necessarily its most effective weapon.
Hitler gave fascism a bad name. Now Mussolini struck the correct fascist balance, for a guy hanging upside down with his innards showing.
Stalin apparently was not a fascist, according to fascists in the U.S who thought Hitler a useful counterbalance to Communism.
But was Stalin a Communist? I guess, yes, in a fascist sort of way. And apparently Hitler was a Socialist, in a fascist sort of way.
Personally, I think the two of them went as far as they did based on their love of the leader fashions popular at the time. Tunics, riding crops, those cool boots, and insignias.
Tons of insignias.
Hilzoy wears the guise of a bioethicist. Katherine, if I’m not mistaken, is working on a the guise of an attorney.
But I know they both wear capes as they launch themselves out of the phonebooth.
Gary Farber wears the guise of Gary Farber, who wears the guise of Gary Farber, who wears the guise of…. you get the idea.
Judging from the name DW Pittelli, which is all I have to go on, I would say this person is wearing the guise of either a formula racecar driver or some sort of Sicilian olive oil merchant. I sense no creeping neo-fascism.
Just a guy who forgot to write, “if you’ll pardon the expression” after dropping the “useful idiot” bomb.
I’ve done worse, but then I actually am a fascist.
DW Pittelli: you say, “Does anyone doubt that the enemy held at Guantanamo is “fascist”?”
So let’s jump from the general “the enemy held at Guantaname” to the specific case of Sami al-Laithi. What do you think — fascist or not a fascist? In what would justice for this man consist?
Or, does Mr. al-Laithi forfeit his claim on Justice by having been in a war zone in the wrong place, at the wrong time? Is that the argument you’re making?
Personally, I always thought Stalin and co. were a bit frumpy in the boots and tunics departement.
It might have something to do with the Menswear gap.
“Personally, I always thought Stalin and co. were a bit frumpy in the boots and tunics departement.”
How odd.
(This is merely tangential.)
Hmmm…
I think someone is being tangentally chastised, but I can’t tell for sure. I might have to award myself a, what’s the term, Karnak Award?
Just for record:
Hitler: Bad!
Stalin: Bad!
Mao: Bad!
Pol Pot: Bad!
DWPitelli:
The problem with this site’s position is that it rewards outrageous assertions, implicitly trusting an enemy who has not shied from tactics far more irregular than white propaganda.
The problem with your thinking is that you implicitly trust the Bush administration’s outrageous assertions, even after much evidence of deliberate lying and deception.
Which is why the primary point here is that our system have appropriate safeguards — something other than “trust us” as argued by the current liars in charge. The point here is not that everything said by detainees must be true — only some of it has to be true for it to be a major outrage.
It is never approprite to argue that such safeguards should be dropped because we “know” everyone being seized by the Bush administration is a dirty filthy Al Queda terrorist. Too many innocents have been mistreated to date to make this assertion with a straight face, and as I said above, the “trust me” argument should never be accepted anyway.
Larry Johnson on the non-effectiveness of torture, by the way.
“I think someone is being tangentally chastised….”
Indeed, my omniscience is such that I knew there’d be someone on a thread on ObWings a year and a half in the future that I could make a reference to that would be sufficiently oblique that no one could be actually sure I was commenting, a year and a half in advance, on them. Not even me! (When I figure out who I was supposed to be commenting on, I’ll let you know.)
Or maybe it just happened to be another entry about Stalin and Simon Sebag Montefiore’s book that so mentioned Stalin’s boots (a subject I didn’t introduce here).
Tough to tell which, indeed.
DWetc: you should also note that this site does not have a position. I do. There are probably a few beliefs that all of us have in common — basic truths of arithmetic, maybe– but that’s about it.
I do not claim that everyone at Guantanamo is guilty, or the enemy, and thus fascist. I do not claim that the military is perfect in its status determinations. Likewise, the military has not been perfect in its record of releasing Guantanamo prisoners; some have since been killed or captured again on the field of battle.
You must likewise concede that the civilian justice system is not perfect in its determinations. The civilian justice system might be closer to this perfection, but that is not at all clear, and even if it could be in this situation, using it at Guantanamo would not be worthwhile if it led to the problems I’ve outlined above (e.g., intel given to the enemy, soldiers removed from battle zones in order to testify).
If men fighting for the Taliban or al Qaeda cannot be considered “fascist,” then the term must be considered retired, and historically limited to the followers of Mussolini. The industry-gov’t partnerships mentioned above are more specifically known as “corporatism.” I concede they were a part of Italian fascism. I do not think that it useful to say that a murderous dictatorship isn’t “fascism” because it isn’t corporatist. At any rate, the evil associated with “fascism” comes from its use of murder and lack of freedoms and democracy, not from the details of its “corporatist” philosophy. The fact remains that the “Islamofascist” enemy is such an evil and the semantics of “fascism” do not change that.
Please quote a statement of mine here in which I have accused “our doctors, soldiers and military and political leadership of, essentially, being evil.” If you can’t, I’d ask that you withdraw your accusation, please. Please also quote a statement of Hilzoy’s, and a statement of Katherine’s, to support your accusation against each.
1) I have not singled out anyone, except implicitly the initial poster (Hilzoy).
2) The initial post here is based on the supposition that these ridiculous claims (of widespread torture and maiming by doctors and soldiers) should be taken seriously, indeed, that the claims are so serious that merely by having been made they should trump all legal precedent, and further, that the other side (e.g., Senator Graham) is deserving of scorn merely for taking the other side.
So yes, when someone says that extraordinary measures should be taken to deal with an extraordinary evil, he is implying belief in the existence of the extraordinary evil, in this case widespread deliberate maiming and torture by US doctors and soldiers, covered up by the military and executive.
“I have not singled out anyone….”
Earlier:
“Further, by taking seriously a claim… you….”
“Further, you ignore that even if….”
“Further, you ignore that….”
“Despite this, you believe….”
Apparently this usage is a problem with you people. And since I’m not addressing any single person, if I said that people who mistakenly thought that there wasn’t a usage problem here were all big fat idiots, no one would have any reason to take offense. Because I’m not singling anyone out.
Good thing, too, since I try to refrain from giving pointless offense, unsuccessful as I often am at that.
I’m just different from you people that way, you know.
indeed, that the claims are so serious that merely by having been made they should trump all legal precedent
WTF?
DWPittelli, the legal precedent for requiring the authority holding a prisoner to show that they have legal cause to do so goes back to 1305 (earliest recorded use of the writ of habeas corpus) and it is thought that the legal principle itself predates Magna Charter (1215).
The claim made by the Bush adminstration is that these prisoners are suspected of crimes so serious that the suspicion in itself justifies repealing Habeas Corpus – a possibility that the US Constitution allows for only in times of invasion or rebellion.
You could argue that the War on Terror counts as defense against an invasion, or suppressing a rebellion; you could argue that the Bush administration is right in overturning an ancient legal principle; you might even try to refute the charges of torture; but when you claim that the people opposing the repeal of habeas corpus are attempting to “trump all legal precedent”, you are literally rewriting history.
If men fighting for the Taliban or al Qaeda cannot be considered “fascist,” then the term must be considered retired, and historically limited to the followers of Mussolini. The industry-gov’t partnerships mentioned above are more specifically known as “corporatism.”
Well, no — some kind of corporatism is generally considered an essential part of fascism in most definitions I’ve ever seen, but that doesn’t limit it specifically to Italian fascism. I’m not asking for actual fasci di combattimento to sprout up in the Middle East [in fact, I’d be delighted if they never appeared again] but before you toss off epithets like “fascism” I’d ask that the movement you were describing had some similarities to other genuine fascist movements beyond mere totalitarian objectives.
More pointedly, if everything changed on 9/11, as I’m repeatedly told, why are we using lingo from the 1920s to describe a phenomenon from the 1990s — and even more pointedly, given from the ever-changing morphology of terrorist “organization”, the new century? “Islamofascist” is a pretty useless descriptor on most counts precisely because it obscures what it should reveal: the purpose, the intent, the mechanism, something about the “movement” (assuming that there is a movement per se to be described at all) beyond merely that they’re Muslims and Evil.
I do not think that it useful to say that a murderous dictatorship isn’t “fascism” because it isn’t corporatist.
Sure it is. Otherwise you couldn’t distinguish between, say, Hitler, Pol Pot, Suharto, Pinochet, Mao, Stalin, Saddam, Mussolini, Somoza, Oswald Mosley*, Lon Nol, Marcos, King Saud, and on and on and on and on…
Fact is, we have a phrase to describe murderous dictatorship: “murderous dictatorship”. [In Al Qaeda’s case, we can be a bit more specific: their ideology is a violent/murderous Islamic theocracy.] Fascism has a specific usage: crudely speaking, it’s a right-wing ultranationalist movement that believes in the subjecting the will of the individual to the will of the State (usually personified in the figure of a Leader) that’s totalitarian in its social aims and corporatist in its economic ones.** I’ll grant that that’s a somewhat amorphous definition… which is precisely why we shouldn’t use it in places where it doesn’t apply, since it’s the amorphous definitions that are most prone to feature creep.
In Al Qaeda’s case, at least, it’s fairly clearly not fascist in at least one key particular: fascism demands its people subject themselves to a mythic State, usually embodied in a Leader (Mussolini, Hitler, Mosley *snicker*). It explicitly delimits notions of religiosity and godhead to the secular, Hitler’s dabbling in the occult notwithstanding. Al Qaeda demands that its people subject themselves to (their interpretation of) Allah — not to the State at all, but to God In Heaven — whose will bin Laden is channeling as, effectively, a prophet. The former is fascism, a 20th century phenomenon; the latter is theocratic thuggery which goes back at least 2000 years (ask the Romans how they felt about the Zealots, for example).
Now it’s certainly conceivable that, were Al Qaeda to form a nation-state, this might recede into fascism-with-a-theocratic-gloss… but then again, the absence of a terrorist nation-state — or even any desire for a nation-state beyond the most primitive, e.g. the ludicrous “Caliphate” we keep hearing about — is precisely why most of these warmed-over 20th century terms are inappropriate in the first place.
To repeat what I said above, if this is supposed to be a New War then it demands New Terms to properly describe its particulars. Calling something “fascism” as a generic marker for “evil”, or even “would-be totalitarian evil”, obscures the very point you should be trying to convey, namely how are they evil, and in what ways do they differ from previous iterations of the same?
* Heck, by your definition Mosley might not even be a fascist despite having founded the British Union of Fascists!
** Regardless of what you think of the merits of his overall case, Dave Neiwert’s “Rush, Newspeak, and the New Fascism” has one of the better discussions of the definitions of fascism I’ve read online, as well as a decent collection of references on the issue as well.
There are probably a few beliefs that all of us have in common — basic truths of arithmetic, maybe– but that’s about it.
Speak for yourself, Fabio…
Gary, let me be clearer for you. The initial poster believes that the claims of maiming and torture are relevant to, and should lead to, judicial review, and indeed, to disparagement of Senator Graham and others who disagree with him. He, like anyone else who believes all this, is:
1) giving more credibility to the claims than they deserve. (They are, for a number of reasons I have given above, ridiculous.)
2) in effect in favor of a system where the more outrageous the claim the more likely the judicial review
The “you” in my first post, as I believe a rereading would make clear, refers to the person responsible for the initial post and anyone who agrees with him that the claims of maiming are of such importance. Others posting here may or may not fall into this category. Some may agree with the poster that judicial review is warranted, but believe that this is true regardless of the maiming claims; they are not thereby accusing US personnel of grave evils.
1) giving more credibility to the claims than they deserve. (They are, for a number of reasons I have given above, ridiculous.)
Could you please explain what evidence you would accept as proving that those claims are not, in fact, ridiculous? Because right now your claims that they are ridiculous seem to boil down to “I can’t believe they did it” which isn’t exactly convincing.
[For example, “generally the most important concern of a torturer is not to leave evidence of his torture on the person or body of the victim,” which is, well, wrong. Very wrong. Very, very wrong, as even a cursory glance through the history of torture can attest.]
Some may agree with the poster that judicial review is warranted, but believe that this is true regardless of the maiming claims; they are not thereby accusing US personnel of grave evils.
We know for a fact that a number of US personnel have committed such “grave evils”. Is it not mete and just that they be so accused?
DWPittelli: 1) giving more credibility to the claims than they deserve. (They are, for a number of reasons I have given above, ridiculous.)
If the claims are ridiculous, then they can be shown to be ridiculous in court: and given the pro-torture reputation of the Bush administration, and the fact that well-sourced allegations of torture and murder have recently been made against the US military, if the claims are untrue, it is necessary to show that they are untrue.
2) in effect in favor of a system where the more outrageous the claim the more likely the judicial review
Pointing you again to the long history of judicial review. To be for the right of a prisoner to judicial review puts you into the most conservative (in the best sense of the word) of groups: it is a right that has a legal precedent of seven centuries at least. The idea that it should require a claim of gross brutality to get judicial review is wrong – I think I can safely say that this is not either Hilzoy’s or Katherine’s intent in posting these accounts. Any prisoner has the right of judicial review.
Anarch,
Communication requires some shared agreement about the meaning of words. But I think it’s clear to any of you what I meant when I made my claim: “in the guise of antifascism, you are ironical “useful idiots” for fascism.”
Nevertheless, let me rewrite that sentence so there can be, I hope, no misunderstanding with regard to any of the words therein:
“Although you are explicitly (and sincerely) opposing what you see as nascent dictatorship, you are, ironically, acting as useful idiots for a movement which openly seeks murderous dictatorship.”
In actuality, I doubt anyone thought I was talking about corporatism or other details of Mussolini’s government. And I think that most educated people know that “fascism” generally means something broader than this, and yet something narrower than “everything evil.” For example, my Webster’s New World defines it as “a system of government characterized by dictatorship, belligerent nationalism and racism, militarism, etc.”
Was Sen. Graham Intentionally Misleading or Was He Deceived?
Sen. Graham has a reputation as an honorable man, and of the GOP Senators has tended to be one of the better ones on the torture issue, probably due to his experience as an Army JAG officer. That makes his introduction of the Graham Amendment and espec…
your claims that they are ridiculous seem to boil down to “I can’t believe they did it” which isn’t exactly convincing.
As I pointed out in my first post, it was not likely that the same people and system which leaked other, trivial “abuses” could keep this torture-by-maiming a secret.
Since you have not addressed this or other reasons I gave, other than to mischaracterize them as “DWP can’t believe it” I think you know that I am right: that these torture claims are ridiculous, and indeed, indefensable.
Certainly there are times and places where torturers are willing, even eager, to leave evidence of their torture. (Saddam’s Iraq, for example.) This evidence of torture and maiming aims to keep the populace cowed. But clearly most governments, which want to maintain a certain appearance of righteousness, do not want to be discovered; they either leave no clear marks of torture, or the bodies are “disappeared” afterward.
At any rate, it beggars belief that the US would use such maiming torture and yet would let the torture victims survive and even communicate with other prisoners.
DWPittelli: And I think that most educated people know that “fascism” generally means something broader than this, and yet something narrower than “everything evil.” For example, my Webster’s New World defines it as “a system of government characterized by dictatorship, belligerent nationalism and racism, militarism, etc.”
Plainly, al-Qaeda are not fascists, then, are they? They are not a system of government; they are not nationalist; and their leaders are not dictators. If we want to describe them accurately, we could say they are religion-inspired terrorists, or a theocratic terrorist organization; but as your own dictionary tells you, calling them fascists is misleading/inaccurate.
Pervez Musharraf might be described as a fascist; so might Saddam Hussein; so might Islom Karimov. It would, however, be misleading to refer to Mohammed Omar, the leader of the Taliban, as a fascist: the Taliban were explicitly a theocratic government. (You could I suppose use the term “Fascist Theocracy” – indeed, google tells me it’s already in use.) Equally, it would be misleading to refer to Saudi Arabia as a fascist state: it is a monarchy. Words have meaning: let’s use words accurately.
DWPittelli: At any rate, it beggars belief that the US would use such maiming torture and yet would let the torture victims survive and even communicate with other prisoners.
If the accounts given are not accurate, then the prisoners said to be maimed can be produced, not-maimed, and that will answer the charge, won’t it? Or if the prisoner is maimed but has received all possible medical treatment since he came into US custody, then an independent medical examination should be able to refute this charge. It would be directly advantageous to the US military to do so, given that the only defense you appear able to come up with is that if they’d done it, you are sure that rumor would have got out about it before now.
Whether or not these charges are true does not affect the right of all prisoners to judicial review of the charges on which they are being held.
But I think it’s clear to any of you what I meant when I made my claim: “in the guise of antifascism, you are ironical “useful idiots” for fascism.”
Good rule of thumb: when you’re attempting conversation with people of markedly different political persuasion than yourself, especially in these polarized times, the phrase “it’s clear to any of you” or any of its kin — “plain English”, “obviously”, etc. — is an almost perfect guarantee that you’re wrong.
In actuality, I doubt anyone thought I was talking about corporatism or other details of Mussolini’s government.
True. Which is why you’ll note that I both gave a broader definition of fascism — and incidentally, corporatism is a marker of fascism, not equivalent to it — and explained why your usage was wrong.
And I think that most educated people know…
Another tip: don’t write phrases that imply your audience is uneducated. It’ll just tick them off.
…that “fascism” generally means something broader than this, and yet something narrower than “everything evil.” For example, my Webster’s New World defines it as “a system of government characterized by dictatorship, belligerent nationalism and racism, militarism, etc.”
That’s fine, if imprecise, and provides yet another reason why Al Qaeda isn’t fascist: it lacks the requisite ultranationalist component. [It’s also not precisely racist either, IMO, although its hatred of Israel could legitimately be considered indistinguishable.] Again, see my earlier point that there is no terrorist nation-state. The Caliphate of which bin Laden speaks is a phantom, an ideal that has no grounding in either history, tradition or realpolitik. There’s no Altdeutschland from which to create Grossdeutschland, no Italy from which to recreate the Roman Empire, no exalted nation from which to produce this mythical Caliphate as an extension of the State. As “most educated people” know, the fact that a word has a definition broader than X yet narrower than Y doesn’t mean that all notions between X and Y are equivalent and that we can therefore pick whichever definition we wish; fascism has a meaning, and Al Qaeda doesn’t meet it.
As an aside, incidentally: I note that you’ve very carefully not specified who “the enemy” is. This is, I suggest, part of your problem here: when dealing with a homogeneous, or at least unified, group, one can legitimately ascribe ideals, goals, and the like to the group in lieu of mentioning specific individuals. [Sorry, Gary.] When one is dealing with a group that’s disparate, disorganized, heterogeneous or something that’s not a group at all — such as the posters at this site, or the violent theocratic thugs marauding about the Middle East — you cannot talk about the group in any meaningful capacity without specifying precisely which underlying component or components (or member/members) you’re actually describing.
The fact that you wrote “So why exactly is it not proper to call al Qaeda (or the Baath parties)” is, I think particularly telling: there’s absolutely no earthly reason to lump these two groups together (based on the information we possess) provided you’re using any finer grain than “attacking Americans and Iraqis in Iraq.” They don’t have the same motives, they don’t have the same objectives, they probably don’t have the same support base — demographically, if not financially… the list goes on and on. Referring to them all as “our enemy” again obscures that which should be made clear: in this case, that there are myriad different groups fighting against us, each with their own agenda, and any policy that tries to lump them all together and deal with them en masse will assuredly fail. von and I have clashed over this before, but ultimately what it boils down to is that sloppy terminology encourages sloppy thinking, and now more than ever we need to be clear and precise in what we’re trying to accomplish so that we stand a snowball’s chance in hell of actually doing it. Calling these groups “Islamofascist” isn’t a huge step in the wrong direction, but it’s a step in the wrong direction nonetheless and should be curbed wherever and whenever it appears.
I’m going out the door shortly, so needs must be short, but re this: “The initial poster…. He….”
Hilzoy is a gurl. She let’s us play in the clubhouse anyway.
And I think that most educated people know that “fascism” generally means something broader than this, and yet something narrower than “everything evil.” For example, my Webster’s New World defines it as “a system of government characterized by dictatorship, belligerent nationalism and racism, militarism, etc.”
I refer you to my questions of 9:09 am. The definition of fascism you gave defines organizations. How do you apply that to individuals? Again, you seem to be using it as an epithet rather than a meaningful term, which suggests that you are cloaking yourself in the guise of rational debate (cf. your reference to Aesop).
I would also point out that your definition
[A]n organisation is generally considered fascist (or more strictly neo-fascist) if it uses violence to attain or maintain power and to eliminate or intimidate dissidence, and its leadership is not subject to democratic removal.
makes the use of violence the key. Yet you seem to believe that people should be jailed before they ‘use’ violence. There is a reason why one does not arrest people for murder before they commit it.
Your final argument displays a certain incoherence. Your argument is because the US is not engaged in attempting to cow a population (which is your assumption rather than a point of fact), if they did torture, they would never permit that information to get out. Thus, torture can only be taking place if there is no accusations of torture. This sort of topsy turvy logic makes your use of a phrase by Lenin (useful idiots) doubly ironic.
As I pointed out in my first post, it was not likely that the same people and system which leaked other, trivial “abuses” could keep this torture-by-maiming a secret.
But they didn’t. We started hearing about these tortures in 2003 (can someone else shag a cite? my connection’s suddenly gone on the fritz) and we’ve been hearing more ever since. In fact, it makes complete sense that what you term `trivial “abuses”‘ (nice scare quotes, btw; which “abuses” are you actually referring to here?) would come out first since no-one was bothering to cover those up.
At any rate, it beggars belief that the US would use such maiming torture and yet would let the torture victims survive and even communicate with other prisoners.
Er, why? You’re surely not under the impression that the military’s a hyper-competent, hyper-efficient bureaucracy, are you?
Added in proof: also, what LJ said.
DWPitelli – So, your “no marks” claim isn’t very plausible. Why should a torturer worry about the marks they’ll leave upon someone whom they can keep in custody as long as they choose and whom if they release will have a great deal of difficulty convincing people of the truth of their claims?
Your leaks argument only makes any sense if you think you know the extent to which we abused/tortured/ or otherwise mistreated detainees, without know the ratio of leaks to instances, it gets you nothing
Finally, the civilain/military dichotomy is yours, not the people arguing against the Graham amendment. There are procedures via which military courts could vindicate habeas corpus rights, such procedures aren’t AFAIK, in use.
As Jim Henley [I’m paraphrasing because I can’t find the post] asked some time ago, what standard would you want the government held to before they could use painful techniques in the interrogation of your sister or mother? If that’s not the standard currently in use, shouldn’t it be?
One last post before I leave what’s rapidly, though unintentionally, becoming a pile-on. Speaking of the cover-up: DOD rules Jamadi’s death a homicide.
Snicker.
Jesurgislac references “The Geneva Convention relative to the Protection of Civilian Persons in Time of War.” He fails to note that the Convention applies only to “armed conflict which may arise between two or more of the High Contracting Parties” and to “cases of partial or total occupation of the territory of a High Contracting Party.” Further, that “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”* Thus, it probably applies to Iraqis captured in Iraq, but not to other permutations in the “war on terror” or whatever Bush is calling it these days. (My understanding is that the US has this policy concerning Iraqis captured in Iraq.)
See Geneva Convention at:
http://www.unhchr.ch/html/menu3/b/92.htm
Anarch, those were not “scare quotes.” I clearly referred to Koran “abuse” and threats to make a man “unclean” with pretend menstrual blood in my first post, which was referenced later as “trivial abuses.”
Anarch: “You’re surely not under the impression that the military’s a hyper-competent, hyper-efficient bureaucracy, are you?
No, but you are. Since it would have to be so for us not to have seen some evidence of widespread maiming torture.
liberal japonicus: Your argument is because the US is not engaged in attempting to cow a population (which is your assumption rather than a point of fact), if they did torture, they would never permit that information to get out. Thus, torture can only be taking place if there is no accusations of torture.
No, my argument is that the US (which may or may not be severely torturing certain prisoners, I do not know) might or might not succeed in keeping the torture secret, but they would definitely take greater care than they would have had to for these accusations to be real. The measures that the US would take, contrary to these accusations, are:
1) Low-ranking military guards would not be in on the secret, let alone taking part in the torture. They cannot be trusted to keep any explosive secrets.
2) Military doctors would not be in on the secret, let alone taking part in the torture. They are even more likely to spill the beans on such matters, for reasons of conscience.
3) The torture would instead be done by dedicated, probably non-military personnel in a dedicated super-secret facility, like the CIA facilities reported on recently in the WaPo.
4) Even with the provisos above, the CIA would probably not torture prisoners using such crude and evident methods, and if they did use such crude methods, they would keep the torture victims completely separate from all other prisoners, forever and completely, until killing and disposing of their bodies.
Finally, if the US did not take these 4 steps, then we would have some more evidence of this widespread medical malpractice / maiming torture, just as we have seen evidence of other malfeasance, both trivial (Koran flushing) and serious (beatings to death). Evidence like: testimony of US personnel; documents; photographs.
Anarch: “don’t write phrases that imply your audience is uneducated.”
Actually I’m sure you’re educated. Indeed, what I mean to imply and will now state explicitly is that your verbose “fascism” arguments are pedantic and disingenuous. You know that the exact definition of “fascist” is irrelevant to the claim I was making with my initial use of it. I have also since restated my claim using different language (repeated below), and yet your picayune obsession with whether my initial use of “fascism” is historically apt continues.
“Although you are explicitly (and sincerely) opposing what you see as nascent dictatorship, you are, ironically, acting as useful idiots for a movement which openly seeks murderous dictatorship.”
Evidence like: testimony of US personnel; documents; photographs.
testimony of US personnel
Check
documents
Check
photographs
Check
It has been pointed out that by conducting secret torture, it has stretched the limits of the permissible. The reporting of CIA secret prisons makes this scenario more likely than yours of a hermetically sealed torture operation within the military/government. I don’t see how your argument doesn’t simply boil down to ‘because we know about it, this means it is not really happening’.
picayune obsession with whether my initial use of “fascism” is historically apt continues.
While this is addressed to Anarch, I would point out that since you have only given two definitions of fascism and both of them fail to cover your usage, it suggests that it is not an obsession an Anarch’s part. Indeed, the only obsession on display here is the resort to sophistry to make claims of torture disappear.
I’d also point out that continuing to repeat a formulation of Lenin makes me think that you aren’t really understanding what you are saying.
liberal japonicus,
Your evidence would be germane if I were denying the activities of Abu Ghraib. I am not.
DWP: “The initial poster believes … He, like anyone else who believes all this…”
“Jesurgislac … He fails to note”
Your habit of making unsupported (and, in both of these cases, false) assumptions about the gender of your interlocutors does not lend plausibility to the rest of your assertions. Nor do your assumptions about my motives, which are, for the record, not just false, but so false as not to be worth the bother of refuting. They have about as much to be said for them as the assumption that I’m male.
To Gary’s snicker: BFD. I’d seen the article previously, felt it was relevant here in this thread, noted that you’d posted it on the other thread, and decided to x-post it anyway. I’m delighted that you felt a need to draw to my attention the exact same article for, apparently, the sole purpose of delighting the world with the primacy of your blog-reportage but trust me when I say that that’s never been in doubt and aren’t you lucky for that?
To DWPittelli:
Anarch, those were not “scare quotes.” I clearly referred to Koran “abuse” and threats to make a man “unclean” with pretend menstrual blood in my first post, which was referenced later as “trivial abuses.”
Ah, the reference was unclear. Thank you for the clarification.
No, but you are. Since it would have to be so for us not to have seen some evidence of widespread maiming torture.
Again, we have seen evidence of maiming torture. This has been noted numerous times which is why I asked what standard of evidence you would require to acquiesce to that proposition. Whether it’s evidence of widespread maiming torture is different, depending on one’s notions of “widespread” and, for that matter, “evidence”.
Additionally, one data point to consider: when, exactly, did you hear about the CIA usage of former Soviet compounds in Eastern Europe? When did you hear (and give credit to) Abu Ghreib? What does this say about your thesis that keeping such things hidden is “ridiculous”?
Indeed, what I mean to imply and will now state explicitly is that your verbose “fascism” arguments are pedantic and disingenuous. You know that the exact definition of “fascist” is irrelevant to the claim I was making with my initial use of it.
The fact that you haven’t yet addressed the fact that you used the word incorrectly suggests rather strongly that you’ve also missed in its entirety the point I was trying to make. Since I’m running out of ways to rephrase the argument, my only advice would be to re-read my posts and actually consider that there is a point I’m making there, that it is neither picayune nor obsessive, and that it might behoove you to consider what it is should you wish to accomplish anything on the matter — here or elsewhere.
[Small hint: I’ve made no arguments about the historical aptitude of your use of the term “fascism”. I drew on historical examples, true, but that’s because most of the key undisputed examples of fascism are historical. Should you focus on the actual content of my arguments, rather than the strawman of historical aptitude, it might help.]
“Although you are explicitly (and sincerely) opposing what you see as nascent dictatorship, you are, ironically, acting as useful idiots for a movement which openly seeks murderous dictatorship.”
I’m aware of your reformulation, to which I can only say: talk is cheap. Thus far, your arguments are specious at best, fear-mongering at worst, and in either way unsupported by history (consider American treatment of Nazi POWs, explicit supporters of an actually-fascistic ideology) and by morality (viz. Jes’ remarks on the origin of habeas corpus).
[For example,
Military doctors would not be in on the secret, let alone taking part in the torture. They are even more likely to spill the beans on such matters, for reasons of conscience.
Oh really? You say this from the basis of what certain knowledge? You’ve verified this through what external process? Do you have the slightest shred of evidence to justify the first sentence, let alone the conjunction with the second?]
I could just as easily, and with as much justification, argue that you’re the one being a useful idiot in service of a murderous ideology, since by attempting to deny habeas corpus to the prisoners in Gitmo and other locations, you’re virtually guaranteeing that innocents will be rendered to our tender ministrations with tragic results — which in turn will both enrage and embolden the very elements this policy is supposedly trying to curb. Aid and comfort to our enemies! Treason! Etc, etc. It’s not especially productive, but I suppose it’s vaguely cathartic.
Should you have an actual, coherent, supported argument to make, I’m all ears. [Either on a moral or a practical level, although for my sake I’m more interested in how people’s moralities can stretch to justify this.] Thus far, I’ve seen a few potentially interesting points and a wide swathe of argument-by-assertion, coupled with a rather poor circular argument (LJ’s posts are pretty much on the nose) that doesn’t seem to admit actual falsification (similar to what I’ve previously referred to as “ontologically closed”). Part of the problem is that I’m still unclear on your position in this argument as it specifically applies to, say, the Bingaman Amendment, actual prisoners in detention at Gitmo, and actual evidence of abuse and torture that has been committed by American personnel — if you’re interested in continuing the dialogue, I’d appreciate some kind of clarification there — but mainly, like LJ, I can’t see what argument you’re making beyond “Torture can’t be happening because we’re hearing about it”.
Your evidence would be germane if I were denying the activities of Abu Ghraib.
The lack of discovery for Gitmo suggests it likely that similar things that are happening at Abu G are occurring at Gitmo. Also, there have been a number of reports that suggested that the increased intensity and specific techniques that were used in Abu G were imported from Gitmo. Given that there is some doubt as to which way the transmission goes, wouldn’t giving people their day in court be justified, even if you are sure in your belief that no torture occurred in Gitmo? Or is your assertion axiomatic?
DWP, I appreciate your list of things that a competent government engaging in torture would likely do. Two points to consider: (a) competence should never be assumed when dealing with government policy makers; and (b) suppose everyone involved in the torture had been led to believe that it was OK, that what they were doing was just fine. Then they wouldn’t be acting to conceal anything.
This, indeed, was the point of the torture memos. Certain people were balking, so they needed to send word down the line that it’s OK to engage in techniques X, Y, and Z. Especially if you think the guy might know about a nascent plot — allowing for the ticking timebomb scenario leads people to try to find out if there is a ticking time bomb.
Lack of those steps at concealment doesn’t mean it wasn’t happening. And now that low level guys are taking a serious rap for doing what everyone had thought was OK, an eerie silence descends. Most involved can’t talk about it without self-incriminating, and anyway they got confessions through their torture, and are not sorry.
I’m surprised by the notion that policymakers who advocate torture and individuals who engage in torture could be expected to do so “competently”. It seems to me that a policy of using torture indicates decisionmaking by irrational individuals, people who are acting on emotion, not reason. Torture doesn’t work. It isn’t a good way to get intelligence. Disciplined, trained professionals have other methods which, while requiring patience and while not providing an outlet for sadism, work better. The torture described on this series of posts isn’t the result of people behaving in a competent way. It’s vengeful, sadistic, irrational, bigotted: the kind of behavior that comes from people indulging themselves in powergames. It isn’t surprising to me that people who let themselves behave with such hubris would fail to discipline themselves sufficiently to cover up the evidence.
I was tempted to point out DWPittelli’s pronoun misuse, but (a) hilzoy beat me to it and (b) DWPittelli appears to be a newcomer and ought, I think, to be entitled to a little slack on that score.
I am mystified by the attitude, I think displayed by DWPittelli, that we must discard our principles due to this supposed new threat of terrorism. Where are the terrorists’ armies, their industrial base, their power? Is terrorism really new? What have we really been asked to sacrifice? What is the call from our leaders besides “go shopping”?
No, the threat from “Islamofascist terror” is not a military threat. The very idea of terrorism is to frighten us, and to some extent it has succeeded. We have responded foolishly and fearfully instead of intelligently and with courage.
What is the justification for discarding our justice system to cope with perhaps 1,000 prisoners? Can we not handle the load? Can courts not make appropriate decisions in individual cases?
If we cannot bear the pinprick (yes, pinprick) of the 9/11 attack, we may as well throw in the towel right now. The attackers on 9/11, fiendish and brutal though they were, did far less damage than we ourselves have done since, to ourselves and to Iraq.
The founders of this country were not fools or starry-eyed idealists. They designed a political system intended to withstand all the evil inherent in human nature. Their design is being tested now, and the verdict is not certain. If we abandon all the values they believed in, well, it’s trite to say it, but the terrorists will have won.
If we cannot bear the pinprick (yes, pinprick) of the 9/11 attack, we may as well throw in the towel right now.
Well, I am at a loss for words here. My worldview changed that day. At work, we all went out side and prayed, or the equivalent thereof, a few awkward statements and a few minutes of silence on a beautiful September day gone horribly wrong. There really is a huge difference in peoples’ points of view. Certainly I see it here.
“To Gary’s snicker: BFD. I’d seen the article previously, felt it was relevant here in this thread, noted that you’d posted it on the other thread, and decided to x-post it anyway. I’m delighted that you felt a need to draw to my attention the exact same article for, apparently, the sole purpose of delighting the world with the primacy of your blog-reportage but trust me when I say that that’s never been in doubt and aren’t you lucky for that?”
Um, what? I just thought it was funny that we’d posted the same thing two minutes apart. What?
Wow, so much for enjoyable light chat before bed.
How the hell does someone build an entire sarcastic read, complete with detailed psychological analysis as to my alleged feelings and motivations, out of a single word, “snicker”?
I thought it was funny that Anarch and I posted the same thing two minutes apart. I laughed. I indicated in a word that I was laughing. I could have written “LOL,” except I think that’s subliterate. I could have written “oh-ha-ha-ha-I-have-noticed-that-we-both-posted-the-same-thing-nearly-simultaneously-how-humorous-that-is-do-you-not-think- ha-ha-ha-I-laugh-now-ha.” I suppose numerous other variants are available.
But, really, if I’m being accused of… I actually don’t know what — sarcasm? — if sarcasm can be read into “snicker,” then, sheesh, I don’t know anything I can ever say that can’t be misread and taken offense with. What’s the point?
DaveC: There really is a huge difference in peoples’ points of view. Certainly I see it here.
If you’d lived in Afghanistan between 1980-89, Dave, you would have experienced the equivalent of a 9/11 – in terms of destruction and loss of life, proportional to the size of Afghanistan and the US – every day.
I’d never call the loss of 3000 people a “pinprick”. But, considered as war, on other scales than the US’s experience of war, it wasn’t anything very major. It’s like the coincidence that the number of US soldiers killed/MIA in fifteen years of war in Vietnam is about the same number as the number of civilians killed in the 18 months of the Blitz in the UK. Countries with more direct experience of war than the US has measure these losses on different scales.
lily: It isn’t surprising to me that people who let themselves behave with such hubris would fail to discipline themselves sufficiently to cover up the evidence.
Yes.
Italics begone!
How the hell does someone build an entire sarcastic read, complete with detailed psychological analysis as to my alleged feelings and motivations, out of a single word, “snicker”?
Because it was a poor choice of word? And because this isn’t exactly the first time you’ve — how can I phrase this nicely — called to our attention the fact that you posted about something before anyone else?
[And incidentally, if you don’t think sarcasm can be evinced in a snicker, you’ve clearly never been around much snickering.
“LOL” may be subliterate, but “snicker” isn’t much better and is in fact markedly less communicative.]
Nonetheless, since your intent was merely to laugh at the timing and not at any other issue, consider my sarcasm withdrawn.
PS: Thanks, LJ, but I’m not especially perturbed; it was apparently a bad read on my part (can’t think why) but all is now apparently back at equilibrium.
My worldview changed that day. At work, we all went out side and prayed, or the equivalent thereof, a few awkward statements and a few minutes of silence on a beautiful September day gone horribly wrong. There really is a huge difference in peoples’ points of view.
Mine didn’t, particularly, except in an “oh sh** people are gonna die” sort of way. [On topic, I also guessed that this was going to bring out the worst in us and it sure looks like I was right.] It didn’t because, well, I never bought into the American aura of invincibility; never bought into the American myths of omnibenevolence or of being universally loved; and understood, from a fairly early age, both that people were angry with us and that they had reason to be angry with us.
It’s sort of like, I dunno, watching someone run around telling everyone how wonderful they are. Even if they’re doing good work, even if they’re trying they’re hardest to do the right thing — which we frequently didn’t — you know that sooner or later someone’s gonna pop that loudmouth SOB in the mouth. It won’t be warranted or justified, it’s an uncivilized and barbarous response… but you can see it coming a mile away and it’s particularly galling to be jumping up and down warning people only to be ignored until it’s too late. Playing Cassandra for nigh on thirteen years pre-9/11 (as it was in my case) wasn’t particularly fun, and I’ve no particular desire to start up again (see, e.g., the topic of this thread).
But, really, if I’m being accused of… I actually don’t know what — sarcasm? — if sarcasm can be read into “snicker,” then, sheesh, I don’t know anything I can ever say that can’t be misread and taken offense with. What’s the point?
Gary, if my comment simply quoting what you related to the board earlier was taken as an attack, I apologize. I would point out that the shorter a phrase is, oftentimes this increases rather than decreases the number of possible readings. (I often thing that silence increases the possibilities to infinity, but that’s another subject)
And, as I said, if you couldn’t tell that Anarch was getting hot under the collar (as would I if I were accused of a ‘picayune obsession’ (despite the fact that Picayune is my hometown)), you should have. (that last should be read as friendly advice, not as a suggestion of any lack on your part)
I am paraphrased as: “Torture can’t be happening because we’re hearing about it.” But actually, my position is quite the opposite, basically that “THIS torture can’t be happening because we’d be hearing MORE about it.” In short, Sami al-Laithi is a liar or is delusional. I make no claim about other torture elsewhere. I concede that the fact of other torture elsewhere is proof that Americans are capable of torture. But the actions of both whistle-blowers and the armed forces in these incidents are also evidence that such matters are not and could not be routinely covered up (unless they were performed by different types of people at different types of locations, such as the CIA-run prisons; which still makes al-Laithi’s claims false; although of course whatever moral outrage you feel about Guantanamo would properly be the same if the torture were done by the CIA).
I agree that habeas corpus is a bedrock of our freedoms, because an executive that can hold people without the consent of an independent judicial branch, can initimidate us all and maintain a dictatorship. That said, an executive can obtain no such power advantage by detentions overseas, or of noncitizens. Further, non-US citizens, in war, held overseas, have traditionally not had habeas corpus rights, and the recent SCOTUS decision granting some such rights was based on statutory interpretation, not a constitutional requirement, and was focused on the quasi-US status of Guantanamo. (What is the grand import of this if we can hold prisoners overseas instead; we’ll just stop moving them to Guantanamo?)
My apologies to Hilzoy on my gender confusion. However, I think that misreadings such as Jesurgislac’s failure to pay attention to even the opening paragraphs of The Geneva Convention relative to the Protection of Civilian Persons in Time of War, are a bit more relevant to actual arguments.
DWPittelli, I honestly don’t care what gender someone supposes me to be online – on some discussion topics it may matter, but in this area it does not make a blind bit of difference.
However, I will admit to feeling somewhat perturbed that you evidently have no idea that Iraq and Afghanistan have both ratified the Geneva Conventions (including the Fourth, “relative to the Protection of Civilian Persons in Time of War”) in 1956, and are therefore both “High Contracting Parties”, as much as the US is: the Conventions apply to armed conflict in Afghanistan as much as in Iraq. Indeed, 188 nations have ratified the Geneva Conventions: they are considered customary international law. A national of a country that is a High Contracting Power to the Conventions, fighting in another country, still has the right to be protected by the Conventions.
According to the Third Geneva Convention, the US was required to treat all prisoners as prisoners of war until proven otherwise.
The Conventions, it’s true, say nothing about how to treat someone who was kidnapped from a state where no armed conflict was taken place, and then imprisoned illegally for an indefinite period of time, which is how some at least of the prisoners in Guantanamo Bay were taken there.
Habeas Corpus
HABEAS CORPUS….P. Sabin Willett, a lawyer who represents Guantanamo Bay prisoners on a pro bono basis, writes in the Washington Post today about the Senate’s decision to eliminate habeas corpus rights for prisoners suspected of being enemy combatants…
That said, an executive can obtain no such power advantage by detentions overseas, or of noncitizens.
This seems very wrong to me for a number of reasons. For one thing, in at least a few cases (I’m thinking specifically of the Lackawanna Six), defendants with US residency or citizenships were threatened with being sent to Gitmo. The existence of extralegal sites should make us all a little nervous. As for the reasons that have to do with all those human beings who don’t have the benefit of US citizenship, I can’t find a way to put my thoughts intelligibly and politely, so I’ll stop here.
GF – how about “Great minds think alike” next time? “Snicker” struck me as “Pwned” would have if you were the type of person who would use the latter unironically. And since of course you’re not that sort of person, I think Anarch would have correctly understood you if you had in fact written “Pwned”.
DWPittelli, here’s hoping you stick around and find a niche in the community.
I am paraphrased as: “Torture can’t be happening because we’re hearing about it.” But actually, my position is quite the opposite, basically that “THIS torture can’t be happening because we’d be hearing MORE about it.”
I’m not sure how this functions as the opposite of the statement. I presume that ‘THIS torture’ refers to torture at Gitmo. Perhaps one problem is that you seem to think that torture is mistreatment specifically designed to elicit information. I would define torture as repeated mistreatment without making any reference to the reason why it is being done. GIven that the following incident occurred, if similar acts occurred with prisoners and they were not given medical treatment (as the information that Kath and Hil has posted points to), that would be torture, I think. Given that officials seem not completely forthcoming in a case involving a US soldier, the argument that we would be hearing more about torture if it were going on seems anodyne.
This article noting Japanese mistreatment of POWs and their punishment for such mistreatment might be of interest
from the article
Habeas Corpus
HABEAS CORPUS….P. Sabin Willett, a lawyer who represents Guantanamo Bay prisoners on a pro bono basis, writes in the Washington Post today about the Senate’s decision to eliminate habeas corpus rights for prisoners suspected of being enemy combatants…
DWPittelli, here’s hoping you stick around and find a niche in the community.
Agreed.
DWPittelli, here’s hoping you stick around and find a niche in the community.
Me too.
Jesurgislac: “you evidently have no idea that Iraq and Afghanistan have both ratified the Geneva Conventions (including the Fourth, “relative to the Protection of Civilian Persons in Time of War”) in 1956, and are therefore both “High Contracting Parties”… A national of a country that is a High Contracting Power to the Conventions, fighting in another country, still has the right to be protected by the Conventions.
Actually I mentioned that an Iraqi caught in Iraq is probably* covered, and I will stipulate the same for an Afghani caught in Afghanistan. However, nationals of third countries which have diplomatic relations with the US are explicitly not covered by that convention (re Civilians).
(*I say “probably” because there remains the question of if and exactly when each nation has a real government and we are no longer occupying powers, but rather there assisting sovereign governments.)
DWPittelli, here’s hoping you stick around and find a niche in the community.
moi aussi
Damn echo chamber in here.
DWPittelli, you assert that I had failed to note:that the Convention applies only to “armed conflict which may arise between two or more of the High Contracting Parties” and to “cases of partial or total occupation of the territory of a High Contracting Party.”
To be precise, the opening paragraph of Article 2 says:
So, plainly, it applies to the “armed conflict” in Iraq and in Afghanistan.
It is true that the Convention explicitly says:
So, the Fourth Geneva Convention applies to Iraqis in Iraq, and to Afghans in Afghanistan: it was assumed that (for example) a British citizen in Afghanistan will, as the national of a country on normal diplomatic terms with the US, not be treated as if he were an enemy combatant unless he had “committed a belligerant act”.
You see, the Third Geneva Convention specifies (Article 5):
Any citizen of a nation on normal diplomatic terms with the US ought to have been regarded as a neutral, unless they had committed a belligerant act towards the US military or its allies: had they done so, they immediately fell under the protection of the Third Geneva Convention, until their status was otherwise determined by a competent tribunal.
Jesurgislac: “According to the Third Geneva Convention, the US was required to treat all prisoners as prisoners of war until proven otherwise.”
Actually, the Third Geneva Convention, Article 4, part A, paragraph 2 says that members of “organized resistance movements” are covered provided that they
“fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.”
It is true that Article 5 says:
“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
But it does not say what this “any doubt” standard means. Historically, the soldiers who captured a man without insignia themselves had no such doubt about his status, and execution of the illegal combatant followed, often with only the involvement of lower-ranking officers, if any.
You can argue that the text means that there is always doubt until the “competent tribunal” weighs in, but the lawyers who wrote the text could have made this clear if they so chose. At any rate, even under your “doubt” formulation, there is no requirement for the regular Judiciary to get involved.
Regarding the heart of this matter, whether the Judiciary need be involved, to be continued… (I have to attend basically a PTA meeting.)
But it does not say what this “any doubt” standard means.
No, it doesn’t. But the default is clearly: if someone was shooting at you (or whatever “belligerant act” means) and you take them prisoner, they become a prisoner of war. If you (the Detaining Power) believe they do not deserve to be a PoW, Article 5 allows you to move them out of the category PoW by means of a competent tribunal.
but the lawyers who wrote the text could have made this clear if they so chose.
They did make it clear: amply clear. The problem arises when the Convention is being deliberately misinterpreted.
At any rate, even under your “doubt” formulation, there is no requirement for the regular Judiciary to get involved.
When the military, under instructions from the administration, refuse to follow the Geneva Conventions – which is what happened with the prisoners who were deemed without a competent tribunal not to be prisoners of war (and many without even the key test of “some belligerant act”) – then plainly the judiciary of the US must step in to resolve the legal issue, or else the rest of the world must assume that the US no longer wishes to be a signatory to the Geneva Conventions.
Rather than reinvent the wheel, I will quote AU Law Professor Kenneth Anderson. (Yes, I’m sure you can quote other law professors who will argue otherwise, but unless the treaty’s drafters were incompetent, the fact remains that the law was written ambiguously on purpose.)
“The Bush Administration was–and is–not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a “competent tribunal” shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that “should any doubt arise” as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open–it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.”
liberal japonicus has compared US action to that of Japan in WWII. Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs, and that the Japanese government and armed forces nevertheless, as a matter of policy, engaged in widespread neglect, abuse, experimentation, torture and even wilful murder?
Does anyone really think that US action at Guantanamo is comparable?
Does anyone think that Japan’s actions would have been OK if they went through trials, with a judiciary OKing each execution of a US prisoner, but with just as many prisoners actually killed?
And on the other extreme, has there ever been a respected or serious legal post-war or international tribunal (like that of Nuremberg*) where the tribunal acted to punish a government because it acted “improperly” (i.e., without sufficiently formal or independent tribunals) even while punishing people who were in fact clearly guilty of breaking laws of war (e.g., fighting without insignia, rank, etc.)?
The question of whether there is any doubt that al Qaeda and its allies are illegal combatants (with the probable and time-limited exception of Iraqis in Iraq, and Afghanis in Afghanistan) has been answered by the US as “no, there is no doubt.”
We will not be subject to a Nuremberg-type tribunal because we will not be totally defeated (i.e., in the US, even if we lose in Iraq). But if we were, the tribunal’s first responsibility would be to decide whether there is actual doubt about our determination that most of our jihadist enemies are illegal combatants, not just “doubt” in the sense that the jihadists themselves claim otherwise.
Stopping by briefly:
Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs…
Well, yes, since (so the standard story goes, LJ can correct me if I’m wrong) the Japanese bushido culture didn’t admit of a category “POW”, only of those too cowardly to commit seppuku. In that sense, the (official?) Japanese position was that they hadn’t taken POWs but, essentially, slaves to be treated and disposed as such. It doesn’t make things any better — I’m not sure if it makes things worse or not — but it’s a qualitatively different category of malice, error, horror, whatever you want to call it, than American mistreatment of prisoners at Gitmo, Abu Ghreib or the like.
[That’s towards the Americans, btw. Towards the Chinese (or other Asian races) they were… markedly less genteel.]
Yes, but Japan being a signer of the Geneva conventions, their “code of Bushido” defense was irrelevant in the face of the actual text of said treaties.
However, if Japan’s actions were limited to indefinite detention of unlawful combatants (who wore no insignia and did not themselves follow the rule of war), and their only “crime” was that their military investigations of claimed abuse were arguably lax, in the face of a level of abuse similar to that in Guantanamo or Abu Ghraib, then Tojo et al would not properly have been tried and executed under the rule of MacArthur.
liberal japonicus has compared US action to that of Japan in WWII. Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs, and that the Japanese government and armed forces nevertheless, as a matter of policy, engaged in widespread neglect, abuse, experimentation, torture and even wilful murder?
Does anyone really think that US action at Guantanamo is comparable?
There’s a bit of problematic elision here. Though I did link to the article, I think it’s a bit strong to say that I ‘compare’ the two in totality. (especially since I didn’t write the article)
What I took away from the article (and if I can finish a translation I am working on this pm, I hope I can write something a bit more detailed) was that the legal basis for which Japanese were tried for war crimes is precisely the same basis that US soldiers could be tried.
That’s why I think your comment
We will not be subject to a Nuremberg-type tribunal because we will not be totally defeated
is quite revealing. The main complaint against the Nuremburg trials was that rather than being some standard, it was simply victor’s justice. If I read your comment correctly, the reason that we impose these kinds of conditions on the people that we capture in the WoT (or who are turned over to us) is simply because we can. I don’t think this is the standard that we Americans have previously held ourselves to.
Again, I’ll try to post something to address the notion of illegal combatants and your discussion of Nuremburg type trials later.
On preview, the question is raised about Japan’s adherance to the Geneva protocols. They did not sign the 1929 protocols (they did sign the 1907 Hague convention), but gave a qualified agreement in 1942 to abide by them. I’m not precisely sure how that agreement was qualified, but will try to find out.
Jackmormon,
My point was not that it is morally acceptable for the President to hold noncitizens who are actually innocent. My point was that the President, even if he aims to be a tyrant, cannot intimidate citizens (i.e., those who would otherwise vote in one of his political opponents) even if he has unlimited power to detain certain people, provided that those people are not US citizens. (And very limited power to intimidate a few voters if he has authority, as under ex-Parte Quirin, to detain citizens who are overseas or have just returned from overseas in order to attack the US.)
The Constitution does not protect against every possible evil, and neither does any body of laws; it protects against the evils which are actually likely to be of some temptation to people, especially people in power. And it especially protects against the evils which would allow those people to maintain power at the expense of our liberties.
It’s the fact that the President has no power-incentive to falsely imprison noncitizens that leads to lower standards for such (in conjunction with war, which necessitates the same).
My position is not that “the reason that we impose these kinds of conditions on the people that we capture in the WoT… is simply because we can.”
Naturally, being able to do something is, universally, and by definition, a precondition for doing it. (In that sense, “victor’s justice” is the only kind of justice that has ever existed.) But the reason or motivation for doing it is a separate issue.
In this case, the reason we hold illegal combatants is to win the war on terror. Giving them the rights of legal combatants or of civilian defendants would hugely weaken our ability to wage war, or hugely weaken our criminal justice system.
If, based on a Guantanamo detainee’s claims, we decide they have a right to civilian oversight, we will of course see that most or all of them will make similar claims and demand such hearings.
The judiciary is not a talisman guaranteeing fair outcomes. These hearings will either be a farce, or they will be serious.
If they are a farce (e.g., the judges essentially just listen to the military, and don’t allow much of a defense), then we will have created a precedent, and the expectation among our judiciary that it is acceptable to run farcical trials. This puts all of us at risk, in a way that today’s system (however harsh or arbitrary it seems when listening to the detainees’ claims) does not.
If the hearings are serious, then that means the detainees will have lawyers, they will have claims which are made public, however outrageous, to be used as propaganda. They will depose and call as witnesses the soldiers who captured them, from around the world, taken from combat; their family members from around the world, to act as character and alibi witnesses; their imams, for the same purpose; our intelligence officers and analysts, to tell how they knew of the defendant’s status and location. In short, it would completely disrupt our war effort, and it would give our enemies total information about our human and technological intel.
In comparison with the above, POW status under Geneva would be somewhat less problematic. Although allowing the prisoners to communicate with each other and their compatriots, and prohibitions on essentially all kinds of interrogations using any level of coercion or even bribery (e.g., ice cream), would certainly be less than helpful.
DWPittelli- You seem to be imagining that the civilian courts will have to hear all these cases, but I’m pretty sure that isn’t how this works. I’m not saying you necissarily are imagining its this way, just that you seem to in your arguement.
Courts can look at the lawyer’s initial motions and decide what is reasonable, they can throw out ridiculous cases made for propaganda purposes. I think that a judiciary which is 60% Republican and 100% non mentally retarded is unlikely to show undue patience for frivolous cases.
Frank,
Let’s say the detainee says, “I’m not a terrorist. I was just strolling by a house they were raiding. I was in Iraq to pick up my bride. Please allow us to depose or question at a hearing: the soldiers who arrested me; any soldiers or intel agents who believed I was a terrorist; any intel concerning who was or wasn’t a terrorist at this house or in this area, to see that I’m not on the list or don’t fit the profile; any aerial or other surveillance of the area in the weeks up to the arrest; my brother; my fiancee; my imam who was to marry me.”
These kinds of requests would be completely normal in a civilian case, and would in fact be the best way to exhonerate him if he is innocent. You’re the judge. Yes or no to the requests? Which ones, and why?
How do you avoid either of the evils I wrote of? Wouldn’t even any possible “middle ground” (accepting some but not all) substantially risk both evils?
DW, you’ve said repeatedly (and so have others) that the military tribunals required by the Geneva Convention would be an undue burden. But it’s not clear to me why. Eyeballing POW info suggests to me that in World War II we handled about a hundred thousand POWs all told. Maybe more, maybe a bit less, but it’s a nice round figure. There were, inevitably, some violations of treaty requirements and standards of decency, but on the whole it worked – people were given hearings and then treated in accordance with their status as settled then.
Right now we seem to be talking about a few hundred prisoners at these place.s I think there are more than that, simply because we know we’re not getting the whole story yet, but say it’s a thousand. That’s one percent of the load from WW2. Now granted that the Bush administration has never taken this conflict seriously, not when it comes to properly funding crucial services, but even so.
It also seems like we’d be way ahead in the battle for hearts and minds if we had immediately examined the guilt or innocence of the people we detained, so that those for whom there was no credible evidence of guilt could go free immediately. That would have really undercut a lot of rhetoric on the part of my country’s enemies. Way too damn late now, though.
Now I’m not sure there is anything to be done, just fighting as best some of us can to keep it from getting a whole lot worse.
Let’s say the detainee says, “I’m not a terrorist. I was just strolling by a house they were raiding. Yes, or driving. Let’s also say, for the sake of argument, that they are being 100% honest with those two statements. Tough, hope they enjoy “Club Gitmo”.
Hope this doesn’t radicalize anyone in their extended family, or their friends and neighbors. Let’s say we send them to Gitmo the long route, via Egypt for six months. A year later, does the realist nationalist perspective offer any grounds for ever letting this person out of solitary alive?
Let’s say we cede total control over non-citizens to the Executive, now. Let’s note that we’ve already ceded some citizens’ civil liberties, and invaded a country tangentially related at best to the 9-11 attacks. Let’s note our propensity to respond to threats by “getting tough”, on whoever or whatever is accessible and can plausibly be linked. What happens when we get attacked again? Here I’m positing a terrorist attack (inevitably possible if we retain civil liberties).
I don’t mean to dismiss your hypotheticals. There are certainly risks associated with providing detainees the means to exonerate themselves. But if the standard is that no one may be released who might possibly act against us in the future, we must be willing to accept the indefinite incarceration of many innocent people. And the inevitable blowback.
Even if we are willing, an affirmative case for this striking change in posture needs to be made which demonstrates not only that potential harms exist – but that this is the best method for addressing those harms while also not imperiling our other important goals. Goals like defeating the international terrorist organizations which ostensibly are the reason for changing this policy in the first place.
Will this change yield more actionable intelligence for us than we lose through non-cooperation, non-extradition, and possible outright hostility from other nations? We’re not going to defeat all terrorist organizations of international scope without help. If this isn’t demonstrably more effective, is it better to lose that intelligence than to risk the release of any detainee who might possibly act against the United States in the future? How many of these someday-maybe-a-threat guys is bin Laden or Zawahiri worth? Or a Saudi financier?
We’re still in amoral territory here. If the affirmative case for this level of executive power doesn’t sweep away the possibility of fence-sitting, we might have to venture out.
DWP: It says, rather, that “should any doubt arise” as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open–it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.
Absolutely: the President or the Secretary of Defense were free to determine, for an entire group of detainees, that no doubt arises, no tribunal is required, and so all of them are PoWs under Article 4.
What they were explicitly, under Article 5, not free to determine, is that no tribunal was required if they doubted that any detainee fitted the categories described under Article 4. The Geneva Convention is quite clear on this: “Should any doubt arise as to whether persons (…..) belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
DWP- Well I think I would need to get my clearance renewed for that, but here is what I would do: Ask the DOD to send me the dossier that they have assembled on him. I would clearly meet the need to know requirement for that information. I would handle the documents carefully and dispose of them properly when I was done.
I don’t know how much evidence I would need to throw his case out. That would depend to some extent on how credible I found the affidavit or deposition from his Imam and fiancee, and to some extent on what the dossier looked like. I’m guessing that the Army wouldn’t need much more than probable cause to hold him indefinately under the circumstances, but unlike many people here I have no background in the law so I don’t know in detail what the law requires.
What I wouldn’t do is ask anyone in the military to give a legal deposition, unless the DOD’s paperwork seemed FUBAR or the alibi was ironclad. An example of ironclad might be if the Imam were a well known moderate cleric and the ceremony were a large mosque ceremony scheduled in the newspapers well in advance.
Medically provable allegations of torture would be different in that I could order that a civilan doctor be allowed to attend the prisoner and examine him and the available medical records and report to me.
Thanks it was kind of fun to fantasize about being a judge.
In this case, the reason we hold illegal combatants is to win the war on terror. Giving them the rights of legal combatants or of civilian defendants would hugely weaken our ability to wage war, or hugely weaken our criminal justice system.
This presumes that the “war on terror” (odious, odious name, though not your fault) is a military/conventional war to be won in the field, which is — to put it mildly — assuming facts not in evidence.
DWP: I’d like to apologize for being snippy the other day. I had just gotten through with more driving, in worse traffic, than any human should have to endure, but that’s not meant as an excuse for bad conduct; only some stab at an explanation of why I did something I normally try not to do. Sorry.
My position is not that “the reason that we impose these kinds of conditions on the people that we capture in the WoT… is simply because we can.”
I realize that you may feel your position is not because we can, but because we have to. Allowing them access to courts would create a huge propaganda victory for AQ to trumpet mistreatment, so therefore, this must be stopped. This suggsts, I would argue, that if there are any innocent in the mix, their rights can’t be acknowledged because it would be taken advantage of by the guilty. Just so I don’t get accused of misreading you, here is where I get that:
If, based on a Guantanamo detainee’s claims, we decide they have a right to civilian oversight, we will of course see that most or all of them will make similar claims and demand such hearings.
This notion that the innocent have their rights abridged because of the behavior of others unrelated to them seems rather specious reasoning.
Also
However, if Japan’s actions were limited to indefinite detention of unlawful combatants (who wore no insignia and did not themselves follow the rule of war), and their only “crime” was that their military investigations of claimed abuse were arguably lax, in the face of a level of abuse similar to that in Guantanamo or Abu Ghraib, then Tojo et al would not properly have been tried and executed under the rule of MacArthur.
It is important to realize two points. The first is that the article is not discussing the trial of Tojo, but of the Japanese soldiers who were executed for abusive treatement of prisoners. 1,029 were tried and 123 were executed, but this was just in Tokyo. Asian countries conducted trials for about 5,000 and 900 were executed. This article discusses some of the problems with the US trials. The point is that those trials were aimed to establish accountability, which is why the op-ed argues that the US would fare badly if evaluated with that in mind. This paper underlines the nature of the trials.
However, the trials were, under the guidance of McArthur, an attempt to teach the Japanese the futility of aggressive war. and as such, they were to demonstrate ultimate accountability. Remember that the charges against Tojo were primarily for waging aggressive war against Allied countries, so-called ‘crimes against peace’
DPW also said:
It’s the fact that the President has no power-incentive to falsely imprison noncitizens that leads to lower standards for such (in conjunction with war, which necessitates the same).
I’m not sure how you can assert that. The incentive of reminding people that he is a war time president, and that the conflict remains on the front burner.
Now, some scattered thoughts that I said I was writing up, not particularly in response to what anyone has written, but I do believe the discussion on Geneva protections and the status of those taken (or caught by bounty hunters) misses the point, which is that we are not simply talking about rights accorded to prisoners but the concept of human rights as a whole.
Previously it was the nation-state that was the guarantor of human rights, and thus acted as protector, which is why the mistreatment of a nation’s citizens is a casus belli (my favorite example of this is the War of Jenkin’s ear). This provided a loophole that the Nazis utilized, which was that as the state exercised total power over its citizens, it also had the power to execute them. Thus, the Nazis were very careful to first declare people in conquered territories as citizens of the Reich, and only after that did they send them to death camps. This is why the Nuremburg trials had to create the categories of crimes against humanity and crimes against peace.
Now, the two products of the Allied victory in WWII were the Nuremberg trials and the United nations, so I think we can draw a line from the assertions at Nuremberg and our expanded notion of human rights (which, ironically, has been invoked numerous times to justify intervention in Iraq)
What we now have with the US is that we have essentially returned to the time when a nation is the only guarantor of human rights, thus basic human rights are only accorded to citizens. While the Graham amendment is a red flag, I think that we can see the outlines of this move of racheting back the notion of universal human rights.
As I said, this isn’t particularly in direct response to anyone (and in the time I have written this, the conversation has moved on), but that is how I’m thinking about this.
Empire and Torture
Torture is bad, empire might even be worse, especially when all the people in the world could be its subjects.
BLAWG REVIEW #32
Katherine, a twentysomething law student & former reporter, over at Obsidian Wings, has not one, not two, not three, not four, not five, but six posts about the Graham Amendment.
Iraq, Terrorism and Torture
I have very little new to say on this subject, and less that isn’t already being said elsewhere. I’m glad that the country is finally exercised about this, though it is cold comfort to our victims after four years. As…