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Saturday, July 09, 2005

Clarity about Gitmo and the law

I mostly stopped reading Andrew Sullivan several months ago, but this morning I was curious what he had to say about the London bombings. I didn't see anything on that topic that inspired any particularly strong reactions in me, but this item caught my eye for some reason:

FIXING GITMO: What Washington needs to do. Jon Rauch brings his usual clarity to the legal question, although I'm not as sanguine as he is about what may have happened during Gitmo interrogations.

So I followed the link to the online edition of the National Journal (admittedly not one of my regular reads) to see what struck Sully as "clarity" on the "legal question" about Gitmo. But I found it very hard to get beyond Mr. Rauch's first two paragraphs (boldface mine):

The Bush administration has been picking up, imprisoning, and interrogating people it regards as "enemy combatants" since the World Trade Center's twin towers fell. In this new kind of war, the administration said, many of America's most dangerous enemies are beyond the reach of conventional criminal law, and many are also too dangerous to release.

All true. The country faced an emergency after 9/11. So the administration unilaterally declared and exercised what amounts to selective martial law: the power to detain suspected enemies and hold them incommunicado, without meaningful access to courts or lawyers, for as long as they are deemed dangerous or able to provide useful intelligence. Two U.S. citizens were arrested and held in this way; hundreds of foreigners were sent to Guantanamo; more than 200 of them, according to the Pentagon, have since been released.

The language I've bolded above is the transition necessary for Mr. Rauch to avoid the correct observation in his first paragraph — that "many of America's most dangerous enemies are beyond the reach of conventional criminal law" — and it is in fact the necessary premise for the remainder of Mr. Rauch's essay. But it's not "clarity," legal or otherwise; it's a ridiculous and demonstrably false premise.

"Martial law" is something imposed by armies on a noncombatant civilian population. Nobody being detained at Gitmo even arguably fits that definition. Mr. Rauch's verbal sleight of hand — "what amounts to selective martial law" — isn't "clarity," but is rather a massive falsehood that becomes his excuse for a pious discussion of the Gitmo detainees as if they'd been placed there for, say, getting a bit too rowdy at an Iowa county fair.

Martial law isn't the legal basis for keeping POWs in captivity, and it isn't the basis for keeping irregular combatants (a/k/a "illegal" combatants because they're violating the "laws of civilized warfare" and can't qualify for the status of true POWs under those laws) in captivity either. No sort of law applicable to civilian noncombatants — whether martial law or regular criminal law — is the basis for detaining these men, and any arguments based on such a premise are offensively specious from the outset.

If you want some clarity — some genuinely elegant clarity — on this topic, Mr. Sullivan, read this short essay by Prof. Eugene Volokh. It's too tightly constructed, indeed seamless, to excerpt here in a way that does it justice, but it brings any reader to this absolutely inescapable conclusion (internal parenthetical omitted; bracketed portion mine):

[A]s a matter of law and of morality, it's perfectly proper to keep an enemy soldier [— whether he's been a lawful or unlawful combatant —] detained until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

Just read the whole thing. Afterwards, unless you're willfully blind to law, logic, and morality, you'll certainly understand why you needn't bother reading past the second paragraph of Mr. Rauch's essay.


UPDATE (Sat Jul 9 @ 12:45pm): Via Prof. Volokh's trackbacks, I came across this reply to his essay by Hanno Kaiser. Mr. Kaiser has the impression that the Gitmo detainees were captured not as combatants on a battlefield, nor through an exercise of martial law, but as persons caught up in a "pocket of [American] executive or military power" that has since dissipated. Equally bogus; amazingly obtuse and otherworldly; something that could only be written by a man with absolutely no concept of what it's like for an American soldier to have an RPG fired at him on a battlefield.

Posted by Beldar at 12:09 PM in Global War on Terror, Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Clarity about Gitmo and the law and sent a trackback ping are listed here:

» Being right, but losing the P/R battle... from ThoughtsOnline

Tracked on Jul 16, 2005 7:59:59 PM


(1) Jim Rhoads (vnjagvet) made the following comment | Jul 9, 2005 3:34:43 PM | Permalink

Which is why I get frustrated with the commentariat's discussions of this issue. This was reflected in the comments to Prof. Volokh's excellent analysis which, in many cases, argued for a complete change in very well settled principles of international law, the laws of war and federal military law that have served the nation well for over two centuries.

Ignorance is not only found among the unschooled. There are many learned professors and lawyers who have never been exposed to the concepts inherent in the laws of war. Nevertheless, they opine. Thanks for helping to keep the discussion of this important issue on point.

(2) Ron made the following comment | Jul 9, 2005 3:58:28 PM | Permalink

Thanks for the enlightenment Beldar. I personally feel that liberals (re: Gitmo, et al)should take a whip withthem wherever they go so they can beat themselves and feel all warm and fuzzy. I don't think Jesus would have had much patience with these detainees either.

(3) MaDr made the following comment | Jul 9, 2005 6:00:21 PM | Permalink

This issue, like so many others, exposes the Left. Whether it's out of ignorance or willful distortion of the facts (in this case, the "rules of war" or "international law"), they seldom have a sound, logical argument to advance.

I'd have a lot more respect for their positions/wishes if they'd abandon these specious arguments; admit what the current "rules of warfare" and "international law" are; and propose their "ideal rules/laws" and why.

(4) Paul Zrimsek made the following comment | Jul 9, 2005 6:14:04 PM | Permalink

To me, the most curious sentence in Kaiser's curious essay:

After three years there is no credible claim of military exigency any more and whatever pocket of executive action beyond (or maybe, prior to the arrival of) the law might have existed, should have disappeared by now.

Would have made December 7, 1944 a pretty interesting day, what?

(5) antimedia made the following comment | Jul 9, 2005 11:58:11 PM | Permalink

" something that could only be written by a man with absolutely no concept of what it's like for an American soldier to have an RPG fired at him on a battlefield."

This is redundant, is it not? :-)

(6) Dave Schuler made the following comment | Jul 10, 2005 10:42:11 AM | Permalink

I couldn't make heads or tails out of Kaiser's post when I read it a couple of days ago. I wonder what he thinks should have been done with the prisoner of war during World War II.

(7) Al made the following comment | Jul 10, 2005 1:43:27 PM | Permalink

Dave S, I'm not so concerned with what we would-have-done/did with POW's during WWII, I'm still unclear what we did with _non-uniformed_ combatants captured in foreign territories. A sniper dressed in mufti for instance.

I'm thinking they got interviews by an officer, which qualified as a field-expedient military tribunal, then shot. But I haven't studied the era well enough to know how often that happened, etc.

The 'not in uniform' part is repeatedly glossed over as a technicality in the Geneva Conventions, but it is really one of the fundamental points in trying to separate 'civilians' and 'soldiers'. The intent was to cut down on guerilla type actions - because the typical reprisal was to punish the civilians. But it doesn't hamper _suicidal_ guerilla actions much.

(8) ed made the following comment | Jul 10, 2005 4:56:02 PM | Permalink


It's pretty much a fact that the best position to be in, in WWII, was a German POW in America. If you were a German POW in America you got to work on work crews, and got paid for it. You could buy luxuries, stamps to mail letters home and often you'd get a chance to meet local girls, whose boyfriends were all off fighting Germans ironically enough.

As for non-uniformed, or mis-uniformed, POWs, that's something of an unknown. I know the biggest use of mis-uniformed soldiers by Germany was during the Battle of the Bulge. That time period also encompassed the Malmedy Massacre, so anybody's guess is as good as mine.

Frankly I expect most such POWs were simply shot out of hand. Nobody really had the facilities, the time or the manpower to really take care of POWs. And these POWs were vulnerable to being shot due to their not wearing their appropriate uniforms.

(9) Al made the following comment | Jul 10, 2005 8:03:50 PM | Permalink

That's what I was thinking ed. The bulk of my understanding of WWII came from movies - documentaries and otherwise. But the _movies_ pretty clearly thought there was a difference between being caught in Axis Germany in an American uniform versus being caught in either a civilian outfit or a fraudulent German uniform. The Great Escape for instance - where the escapees are just shot IIRC.

(10) Fred Z made the following comment | Jul 11, 2005 12:55:54 AM | Permalink

Has anybody got the facts? The real facts, not just blather? Will someone please publish a list of names, where they were found and what they were doing? Did they have a weapon in their hands? Were they clearly with a force of 'insurgents'?

By the way, I like that term. 'Terrorists', no, never, piss off. They do not terrify me. I'd rather die than fear them even a little bit.

What the hey ever happened to 'death before dishonor'?


(11) Boger made the following comment | Jul 11, 2005 2:04:12 AM | Permalink

The mantra after 9/11 was, "This changes everything." The truth is that few then, and fewer now, appreciate exactly how true and how deep that statement goes. I experience a lot of frustration with folk in politics, journalism, law, government, the military who don't grasp it, and who apply all the old paradigms to decision making.

Reading the news today I note another object lesson (served up right after the London lesson). The Taliban have executed (by decapitation) a uniformed US military man. Where were the Geneva Conventions, due process, respect for human rights, ad nauseum, for that soldier? But I will tell you what gets American intelligencia's attention, what really riles them up: a US soldier taking a leak on the Koran.

Here is a quote from a government official who carries a badge and should know better: "Doing these things [coercive interrogations] just makes them more determined to hate us. We can't go down to the level of our enemies. If we do, its going to come back at us later on." That was stated 6 to 12 months ago. In other words, our treatment of the detainees at GITMO was a cause of the bombings in London. Or to put it in the converse, if we did not have the GITMO operation, the bombings wouldn't have happened.

I couldn't disagree more with this scary mindset. We are infidels and their god's law requires a war to the death against us. Its call Jihad. That's it. There is no negotiation, no temperance, no tolerance, no accommodation, no mercy. They have been telling and telling and telling us this. Yet most of my fellow citizens such as the dupe above, will not accept it. They are judging our enemy by our standards and mores. Big mistake; the result: we are fighting a war as serious and threatening as any we have ever been in. We have one play book (the Geneva Conventions, concern for civilians, proscribed weapons and techniques, etc.) and they have a completely different play book. One, quite frankly, that I am not betting against.

(12) Boger made the following comment | Jul 11, 2005 1:29:01 PM | Permalink

Reports today are that the SEAL was not captured and beheaded. Are there any takers on his fate if he had been? My position has not changed.

(13) Greg made the following comment | Jul 11, 2005 6:43:46 PM | Permalink

I still don't understand why it is better to indefinitely detain them instead of having a trial and hanging the guilty. Thoughts?

(14) PC14 made the following comment | Jul 13, 2005 1:53:44 PM | Permalink

AP went with the following headline earlier today:
Military: Only Three Violations at Gitmo

Then I guess they saw the Aljazeera headline on the story: Pentagon investigation confirms Gitmo link

After reading Aljazeera they someone at AP realized how they were off agenda and changed their headline to:
Military Outlines Cases of Abuse at Gitmo

(15) Eh Nonymous made the following comment | Jul 14, 2005 10:57:19 AM | Permalink

Hey, everybody!

Beldar: nice blawg, I've admired it from afar, but today was the first time I've had occasion to link to you (re. the Blake jury being called 'stupid'). This post caught my eye.

I don't disrespect Prof. V, nor do I simply buy the criticized post's points. Here's where I part ways with you:

I infer (although did not read, and therefore cannot be sure) that you believe that the Administration's say so is, itself, enough to establish _beyond the power of judicial review_ that a person kept at Guantanamo, or wherever else beyond the supposed jurisdiction of a U.S. court (and therefore any court), is in fact such a combatant/ irregular/ terrorist/ threat to the U.S.

As I understand, the reason we (meaning liberals, meaning those with a respect for the rule of law in its expansive interpretation as applied to protection of the accused, meaning unfortunately critics of the Administration's position) have had success before some courts, including the S. Ct., is that some of the detained don't disagree about the administration's power to hold, interrogate, and maybe punish the guilty.

What they challenge is _that they have the right to question, before some arbiter- ANY arbiter- the very factual predicates for their detention_.

That some "combatants" have been let go is no proof that the U.S. did, as is alleged, scoop up noncombatants and hold them incommunicado for months on end with no lawyer, trying to turn a sow's ear into a valuable source. But how would anyone know, if they can't even protest that "But they don't even have any _unreliable_ evidence that I'm actually a quasi-soldier!" What if these folks are, in fact, not combatants? Someone, somewhere, in fact alleged they were. But without any judicial review whatsoever, how would we even know? A captain writes an affidavit saying the person was on the battlefield of Afghanistan with a gun, and the accused doesn't even get to challenge the affidavit _if it's provably false_?

So: 9/11 changes things, I'm sure. I disagree that it changes anything about the proper balance of liberty, see for example the Green Bag's review by Rosa Brooks of Levinson's Torture: A collection, entitled "Ticking Bombs and Catastrophes". I won't say she's utterly right, but I will say this: no one has ever shown me a good and principled reason for torturing a subject. That's because no one has ever shown that torture, rather than non-torture interrogation, is at all likely to produce truthful confessions, rather than simply coerced but often untruthful confessions.

What good is it to torture people if they're not the right people? What good is it to torture the right people if they'll die before breaking, or lie to the end, or make up lies when breaking proves to be insufficient to satisfy their cruel captors?

I just watched Batman Begins last night. My favorite part: where Bruce Wayne refuses to become "one of them" in order to defeat "them." The ability to not murder is the difference; that difference is _all_ that really separates us from them, not our democracy, nor our wealth, nor our culture. It's in the morals where it counts.

(16) Boger made the following comment | Jul 14, 2005 1:59:27 PM | Permalink

After Pearl Harbor, Dec 7, 1941, US Gov authority placed the Islands under Martial Law. By the end of March 1942 the FBI Field Office there was closed, all personnel returned to conus. Point being, the FBI had no jurisdiction. Even today, in the States, FBI agents don't waltz willy nilly onto a military base to conduct an investigation. The Base Commander is informed and permission obtained, pro forma though it may be. I have no precise understanding of the law, but for me it is not axiomatic that the FBI should be on GITMO interviewing anybody.

It is the policy of the Bush administration that the "detainees" are not POW's covered by the Geneva Conventions. I have taken the opportunity to read the Conventions on the Internet. Very educational; I recommend it. Number one, I completely agree with the Bush's administrations position. I think the civilized world would do well to issue a codicil making clear that un-uniformed, stateless terrorists are not covered by the Conventions. I think all US politicians running for national office ought to be pursued for their position, yeah or nay, are they POW's or not?

All Americans should understand that execution, the threat of execution, torture, degradation, deprivation and other forms and means of enemy combatant interrogation and disposition, are effective and have saved American lives, both civilian and military. Your position on this subject only depends on whether or not you have certitude that you are going to be on the wrong airplane, subway, or bus at the wrong time. My extreme displeasure with Abu Gharib was the unsupervised and unprofessional nature of the proceedings. The court-martials were 100% justified.

My theme here is that everything has indeed changed, as originally foretold, but the country is back in its comfort zone underestimating the enemy and overrating our capabilities and defenses. Typical lazy, vapid, conceited, ignorant American behavior.

(17) SemiPundit made the following comment | Jul 15, 2005 1:13:01 AM | Permalink

Why is it necessary to transport prisoners from a secure, well-equipped facility like Guantanamo to other countries? What can be done in those countries that cannot be done at Guantanamo that will result in gaining useful information? In fact, wouldn't they be better off in, say, Arkansas or Texas, or Maine?

(18) TJ Jackson made the following comment | Jul 19, 2005 8:58:43 PM | Permalink

The detainees are sometimes returned to their country of original when the US deems such individuals of no interest to the US government although they may be of interest to their host governments. For example Eygpt, which no doubt interviews them in a manner that it is not possible to do at Gitmo due to the shortage of Arabic translators and the like.

(19) TJ Jackson made the following comment | Jul 19, 2005 8:59:34 PM | Permalink

As usual brillant analysis and great writting.

(20) SemiPundit made the following comment | Jul 20, 2005 12:27:13 AM | Permalink

I'm puzzled. If we can't properly interrogate and evaluate them due to lack of translators, etc., then how do we conclude that they are of no interest to us.

How many Arabic translators does Guantanamo need?

(21) Boger made the following comment | Jul 20, 2005 3:25:57 AM | Permalink

Several days ago in MSM:. "With the Pentagon under fire for the treatment of detainees at Guantanamo, {Senator Lindsey] Graham is working on legislation with fellow Republicans John Warner of Virginia, the Armed Services Committee chairman, and John McCain of Arizona to clarify the legal standing of people the administration calls "enemy combatants" who can be held indefinitely. Human rights groups and a number of European countries have said that term has no standing under international law, and the detainees should have the rights of prisoners of war."

The day following in MSM: "A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled unanimously against Salim Ahmed Hamdan, a Yemeni........More broadly [the Appeals Court] said that the 1949 Geneva Convention governing prisoners of war does not apply to al-Qaida and its members. That supports a key assertion of the Bush administration, which has faced international criticism for holding hundreds of terror suspects at Guantanamo Bay without full POW protections.

It will be interesting to see what the good Senators do.

(22) Andrew W. made the following comment | Jul 20, 2005 11:26:39 PM | Permalink

Volker's article is good - but only because it sidesteps the heart of the issue. I don't think that the liberals are frustrated by confining terrorists who are a threat to the USA, but rather we're concerned that there are inadequate mechanisms to insure that the people who are being held are 1. the right people and 2. being held in humane conditions. Can anyone point to anyone who is saying "we should free the terrorists!?" That is a red-herring argument. The liberals are't clammering to free the terrorists, they want to make sure that the people we're holding are the right people. Wouldn't it be nicer if we could say to to the world, "examine all you want, the people we are holding deserve to be held and we have proof." Instead of saying "We don't have to prove it because they're not POW's, they're "enemy combatants." I know that some measures have been put into place to provide these people a hearing, but make no mistake, these measure were instituted because of noise from the left - not because the administration thought it was the "right thing to do." Quite simply, I don't trust our government - or any other government - to do the right thing because it's the right thing to do. History teaches us that unless constrained, governments are dangerous. I resent what appears to me to be an extension, inadequately checked, of our government's power. I worry that it is only a very small step to extend this unchecked power from "dangerous non-citizens" to "dangerous citizens." After all, wouldn't it be just as nice to be able to indefinately detain suspected drug dealers until the war on drugs is over? Don't we want to protect our children from drugs? Don't we recognize that drugs are an immediate threat to our lives, welfare and well-being? Wouldn't it just be EASIER to set these very bad people aside for a while? Why NOT treat them as enemy combatants - I'm quite sure that even if you count every single American killed by every single terrorist action that number is at least an order of magnitude lower than the number of Americans killed by use of illegal drugs.

Fear, even a very rational fear of terrorists, does not justify providing our government the ability to hold people without plenty of proof and access to excellent lawyers for an extended period. Ever. Period. It is ALWAYS a mistake. Governments need borders, and lawyers, because without them, they will behave badly.

I need to stop now, lest I work myself into Beldar's recent condition...

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