The facts about water boarding illegal combatants

The facts about water boarding illegal combatants

via PrairiePundit by Merv on 11/16/11

Marc Thiessen:

It was disappointing to see The Post's editorial on waterboarding this morning replete with so many discredited arguments.  Reasonable people can disagree about whether the United States should resume using enhanced interrogation techniques (as it appears it will if a Republican assumes the presidency in January 2013).  But we should at least debate this proposition based on facts.

For example, The Post writes: "Imagine that a U.S. soldier is captured and subjected to waterboarding. Would Herman Cain and Michele Bachmann consider that torture?  Maybe not, given their disappointing responses to a question about waterboarding posed during Saturday's Republican debate. And if they did object to the soldier's treatment, they've lost the moral authority to argue against it."

Well, no.  It would be illegal for a foreign adversary to waterboard a U.S. soldier, even if the technique did not amount to torture. American troops are lawful combatants.  They wear uniforms or distinctive insignia, follow a clear chain of command, do not hide among innocent civilians, and do not target innocent men, women and children.  Because they follow the laws of war, when captured they receive full privileges as Prisoners of War under the Geneva Conventions — which means it would be illegal for their captors to coerce them in any way, much less waterboard them. 

Terrorists, by contrast, are unlawful combatants.  They do not wear uniforms or distinctive insignia, or follow a clear chain of command.  Not only do they hide among innocent civilians, their primary means of attacking us is to target innocent men, women and children for death.  Because they violate the laws of war, they do not receive the privileges that a lawful combatant receives as a POW under Geneva.  As a result of their own choices, the United States may lawfully coerce them to provide information about imminent terrorist attacks. 

Indeed, it is precisely because they target the innocent that we must coerce them.  When an American soldier is captured and taken off the battlefield, he has been effectively disarmed and rendered unable to cause harm to the enemy.  But when a terrorist like Khalid Sheikh Mohammed is captured, and he has set in motion a series of terrorist plots, he has not been disarmed.  Even in captivity, he still holds the power to kill thousands simply by withholding information.  We have a moral obligation to stop him.

The Post writes that waterboarding "has been considered torture since at least the Spanish Inquisition."   As I document meticulously in my book "Courting Disaster," waterboarding as practiced by the CIA bears no resemblance whatsoever to the water torture employed during the Spanish Inquisition, or for that matter by Imperial Japan, the Khmer Rouge or Nazi Germany.  I am certain The Post can make an effective case against waterboarding without comparing the men and women of our intelligence community to Medieval torturers.

...

There is more.

Thiessen also makes it clear that we did get valuable information that saved lives despite what critics have argued.  But it is the failure of the critics to comprehend the distinction between lawful and unlawful combatants that causes them to be so wrong about the issue.  Those who oppose enhanced interrogation of terrorist continue to be willfully ignorant of the facts.

BTW, when US troops were captured in Iraq, they were brutally dismembered and murdered.

Drones, Geneva Convention, and Other Ambiguous Goods

Drones, Geneva Convention, and Other Ambiguous Goods

via Ideas by David Friedman on 10/20/11

"Any development that makes war appear to be easier or cheaper is dangerous and morally troubling. It lowers the political threshold of war. It threatens to weaken the moral presumption against the use of armed force." David Cortwright, writing at CNN.com on drones.

It is a legitimate argument, but its application is wider than may be obvious. The Geneva Conventions, for instance, are designed to make war cheaper—not in dollars but in human costs. The pre-Napoleonic rules of parole, under which a prisoner of war could give his word not to try to escape and then spend his imprisonment in the town inn instead of the much less comfortable prison, or even give his word not to fight until exchanged and then be sent home, were designed to make war less costly. 

Any such change has two effects. One is to reduce the cost, the amount of damage to things that matter to human beings, including human beings themselves, of warfare, which is good. The other is to increase the amount of warfare, which is bad. There is no theoretical basis to say, in general, which effect is larger—it depends on  the elasticity of supply of war.

In my Law's Order, I discuss [search for the word "duress" in the chapter] the same issue in a different context—whether contracts made under duress ought to be enforceable. When the mugger threatens to kill you if you don't pay him a hundred dollars and you pay with a check,  should you be free to call up your bank and cancel payment once he is out of sight? Being able to pay  him means that when mugged you don't get killed for failure to offer your mugger enough to let you go. But it also means that mugging is more profitable, so more of it happens.

In that particular case, I am pretty sure that making the contract enforceable has, on net, negative consequences. But there is no good reason to suppose that the same is true for innovations, technological or otherwise, that make war less costly.

Warren Kozak: The Real Rules of War

Some Navy Seals are being court-martialed over allegedly mistreating a prisoner. The prisoner in question is the person who was the mastermind of an attack on four U.S. civilian contractors. They were killed, their bodies burned and dragged through the streets of Fallujah, and two of the bodies were hung from the Euphrates bridge.

The mastermind of this operation, Ahmed Hashim Abed, claims to have been mistreated, and has a fat lip to prove it.

In his article, The Real Rules of War, Warren Kozak recalls similar examples from World War II, as related by his father.

Were these violations of the Geneva Conventions? Definitely. Were they war crimes? Most likely. Were they wrong, given the times and the context?

In his book, Mr. Fussell probably sums up the feelings of many soldiers when he quotes a British captain, John Tonkin, who experienced a great deal of the war. "I have always felt," Capt. Tonkin said, "that the Geneva Convention is a dangerous piece of stupidity, because it leads people to believe that war can be civilized. It can't."

While I'm all for civilized behavior, I think it's worth asking if such behavior, and the requirements for such behavior, have limits.

I'm recalling an old Star Trek episode in which the Enterprise becomes involved in a war between two planets. The planets have been at war for 500 years. The reason the war has lasted so long is that war has been civilized and sanitized. Attacks are mounted in computer simulations by one side, countered in computer simulations by the other side, and the results adjudicated by computer. Casualties report to distintegraton chambers where they are quickly, neatly, and painlessly killed.

Compliance is endured by the threat of returning to real war, with real property destruction, and real war casualties. In addition to the people disappearing in the main strike, there would be people with grave but non-lethal injuries (no apparent attempt was made to simulate these). There would be radiation resulting in any number of secondary deaths and injuries (again, I gather these were not factored in). There would be disruption of services, mass starvation, and all the horrors of a real war using real weapons against real people.

When Kirk destroyed the disintegration chamber and the computer that controlled the battle from one side, the leaders of that planet discovered they had a powerful incentive to make peace. War, no longer civilized, had become an effective deterrent to more war.

Geneva Conventions and Hype

The Geneva Conventions were written in an attempt to make war more humane. Merv Benson at Prairie Pundit takes exception to one area where hype seems to rule.

There are several problems that still exist that the media and the ICRC ignore. One of the more obvious problems is treating the Conventions like a unilateral contract binding on signatories regardless of whether adversaries are signatories or abide by the conventions. This gives an unfair advantage to groups like al Qaeda and the Taliban. Thus a televised beheading of non combatants or even POWs are rarely if ever condemned by the ICRC. Yet these same people insist on POW status for unlawful enemy combatants who violate the Conventions. This undermines the conventions and shows a lack of integrity on the part of the ICRC. Has the group ever criticized the Taliban or al Qaeda for unlawfully camouflaging themselves as civilians, putting all civilians at risk? How often do they criticize the Taliban for using human shields? How ofter do they criticize al Qaeda and the Taliban for deliberately targeting non combatants?

If they want to claim relevance they should at least be critical of these aspects of our enemy's operation on a regular basis. Their failure to do so demonstrates a failure of their mission.

Indeed, I've read screeds that hammer the U.S. (and Israel) for any violation of the Conventions, no matter how slight, and no matter how flimsy the evidence. The authors of such screeds are silent on major violations in the other direction. Either they don't grant the other side the status of beings capable of abiding by civilized standards, or they only have vitriol for one party.

Violations of international law

David Bernstein, writing at the Volokh Conspiracy:

One thing that's clear from the recent Gaza conflict is that to many leftists, "violations of international law" is simply shorthand for "a country is engaging in military action that I don't approve of."

A case in point is a statement, via Brian Leiter, by self-styled "American Jewish progressives" (some of whom, I note, seem to assert their Jewish identity only when its useful for bashing Israel) on Gaza. The statement claims that Israel acted "with little or no consideration for human rights or the laws of war."

As usual with such statements, not a single documented violation of the laws of war is mentioned. Say what you will about the wisdom, or even morality, about the IDF's actions in Gaza, the idea that it acts "with little or no consideration for the law of war" is absurd. Not only does the IDF have strict internal rules promulgated by its version of the JAG, but it knows it has the entire international left breathing over its shoulder, looking for any violations of rules that could be exploited for propaganda purposes.

....

In any event, I'll lay down the challenge to the signators of the statement that one should issue whenever one sees similarly ignorant statements: Precisely what "laws of war" do you claim Israel violated in Gaza, what is your evidence for these violations, what treaties or legal precedents can you cite to support your claim, are you aware of legal authorities that disagree with your interpretation of international law, and under what legal theory is Israel bound by whatever particular international law principle that you are purporting to apply (e.g., if you are citing a treaty that Israel specifically declined to be a party to)? Comments are open below for the signators. [UPDATE: One more: Specifically, what could Israel have done differently in Gaza that would lead you to acknowledge that it had complied with the laws of war. If the answer is, as I suspect for many signators it would be, "not go into Gaza to begin with," then obviously we can go back to the first sentence of this post."]

I may have to save that challenge for use elsewhere.  Of course, it won't be answered, any more than my question to one pipsqueak asking where the cited "war crime" had ever been defined as a "war crime" when Israel wasn't involved.  (For example, this pipsqueak called cried "War Crime!" and "Collective Punishment!" when Israel shot back at Lebanon.  Where else has shooting back in a war ever been called a "war crime"?)

Enemy combatants and the Geneva Conventions

HUGH BRENNAN, on Abe Greenwald:

The entire question of how to treat terrorist captives rests on a fallacy. People who have never read the Geneva Conventions somehow believe that "enemy combatants" are the equivalent of soldiers. They are not. They are subject to drum-head trial and immediate execution. Unless you are in uniform, or bearing a distinguishing mark such as an armband or other device, you are what was referred to in the conventions as a "Francs-tireurs."

The U.S. and allied military forces have the legal right to try and execute individuals who are caught in arms without the protection of uniform. Similarly, pirates are "against all flags" and are, by international convention subject to similar penalties when caught; ditto slavers.

 

Executive orders and terrorists

Prairie Pundit looks at Obama's order limiting detainee treatment to the methods described in the Army Field Manual.

Obama is too immersed in the failed lawfare policies of the past. He better hope that Bush has so weakened the enemy that he can't mount a serious attack, because with his new rules the chances of us discovering it are remote.

 

This is either an elaborate head fake to fool the liberals and the enemy or it is a screw up of untold proportions. Obama did leave himself an out on the CIA interrogations on a case by case basis, but that seems a little too hands on for a President.

Maybe it is an elaborate fake.

 

The Democrats' torture narrative

At National Review online:

According to the Levin report, the Bush administration reacted to 9/11 by "redefining" the law to permit aggressive interrogation tactics. Thus, the fable goes, in early 2002 the president determined that neither al-Qaeda nor Taliban fighters were entitled to prisoner-of-war treatment, in effect blocking application of Common Article 3 of the Geneva Conventions and the "well established military doctrine" of "legal compliance with the Geneva Conventions." The administration then covertly set about having its Justice Department alter the legal definition of torture, the story goes, while its interrogators were schooled in illegal tactics by experts at the Defense Department. These techniques were employed by the CIA on important captives and became elements of a new warfare culture that spread to military interrogators at Gitmo and led, eventually, to the Abu Ghraib scandal. 

That narrative is flawed in its fundamental assumptions and fictional in its sweeping conclusions. The Bush administration did not "redefine" detainee treatment law; it undertook to determine what the law says and whom it covers. The intent of the Geneva Conventions, the principal law on the subject, is to civilize warfare by affording benefits, including an absolute bar against abusive treatment, to eligible prisoners of war — i.e., to captured soldiers who adhere to the laws of armed conflict, meaning, among other things, that they forgo intentionally endangering civilians. By definition, al-Qaeda is not qualified for Geneva protections because it is a terrorist organization: It is not one of the sovereign nations that signed the 1949 pacts, and it specifically targets civilians. Though the Taliban was the de facto government of Afghanistan, its fighters also target civilians and hide among them, and consequently they do not qualify for Geneva protections.

....

Prisoner abuse should not be taken lightly. There have been nearly two dozen detainee deaths reported, five of which are believed to have occurred during interrogations. But these episodes are endemic to warfare, not peculiar to the Bush era or a result of the president's policies. Abuse is not to be tolerated — and it isn't: dozens of U.S. military personnel have been disciplined and a number tried in courts-martial. There is a world of difference between relatively rare wrongdoing at the hands of a miniscule number of soldiers and a government program of torture. 

The torture narrative is at odds with the facts. The U.S. does not have a policy of torturing captives, nor does it fail to abide by its obligations under the Geneva Conventions. When abuse has occurred, steps have been taken to punish the wrongdoers and rectify military practices. Those efforts will continue. A sober study would have made that clear. Congressional Democrats have instead found it expedient to smear the administration, the military, and the intelligence community for political purposes.

Holder on Gitmo

From Powerline:

Cliff May (via the Wall Street Journal) calls attention to this statement from 2002 by Eric Holder, Obama's nominee for Attorney General:

One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention. . .you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohamed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

The salient point about this quotation is not that it's from Holder, but that it's from 2002. The view that we had better extract information from the high-value Gitmo detainees and should not be precluded from doing so by the Geneva Convention was widely held in the period shortly following 9/11. And no sane person with hopes of one day becoming the nation's chief law enforcement official would have publicly advocated a position different from the one Holder set forth.

It will be interesting to hear what he has to say now.

Is there a right to self defense?

....Especially if you're Jewish?

...The more vexing question, both morally and strategically, is what Israel ought to do about Gaza. The standard answer is that Israel's response to the Kassams ought to be "proportionate." What does that mean? Does the "proportion" apply to the intention of those firing the Kassams -- to wit, indiscriminate terror against civilian populations? In that case, a "proportionate" Israeli response would involve, perhaps, firing 2,500 artillery shells at random against civilian targets in Gaza. Or should proportion apply to the effects of the Kassams -- an exquisitely calibrated, eye-for-eye operation involving the killing of a dozen Palestinians and the deliberate maiming or traumatizing of several hundred more?

Surely this isn't what advocates of proportion have in mind. What they really mean is that Israel ought to respond with moderation. But the criteria for moderation are subjective. Should Israel pick off Hamas leaders who are ordering the rocket attacks? The European Parliament last week passed a resolution denouncing the practice of targeted assassinations. Should Israel adopt purely economic measures to punish Hamas for the Kassams? The same resolution denounced what it called Israel's "collective punishment" of Palestinians. Should Israel seek to dismantle the Kassams through limited military incursions? This, too, has the unpardonable effect of resulting in too many Palestinian casualties, which are said to be "disproportionate" to the number of Israelis injured by the Kassams.

By these lights, Israel's presumptive right to self-defense has no practical application as far as Gaza is concerned. Instead, Israel is counseled to allow goods to flow freely into the Strip, and to negotiate a cease-fire with Hamas.

....

On March 9, 1916, Mexican revolutionary Pancho Villa attacked the border town of Columbus, N.M., killing 18 Americans. President Woodrow Wilson ordered Gen. John J. Pershing and 10,000 soldiers into Mexico for nearly a year to hunt Villa down, in what was explicitly called a "punitive expedition." Pershing never found Villa, making the effort something of a failure. Then again, Villa's raid would be the last significant foreign attack on continental U.S. soil for 85 years, six months and two days.

The suggestions of the Europeans for Israel's response to the Palestinian collective punishment of Sderot for being Jewish is not one they would find acceptable for themselves. Why they show such sympathy for a terrorist death cult is inexplicable. The targeted killing of Hamas leaders did have a positive effect on reducing human bomb attacks in Israel. The logical response to the war criminals who run Gaza right now is to destroy the Hamas infrastructure o f terror and its leadership. While defensive measures might give some relief, they will not change the hearts and minds of the death cult which will just look for other means of killing Israelis.

Geneva Convention?

I hear frequent qvetching over the Bush administration's position that the Geneva conventions may not apply to al Qaeda members held at Guantanamo Bay. Some assert the administration has claimed it doesn't have to follow the Geneva conventions at all. In fact, there's some question as to whether the conventions apply to terrorists, and if so, which of the four do.

President Bush has, of course, refused to grant any Geneva Convention status to al Qaeda members because that group is not, and could not be, a party to those treaties. <snip> In particular, the Supreme Court did not require that detainees be treated as prisoners of war (POWs) until a "competent tribunal" has determined otherwise, as provided in Article V of the Geneva POW Convention.

A federal district judge has ruled that one fellow, Salim Ahmed Hamdan is entitled to protection under the Geneva conventions.

the district court has ordered in Mr. Hamdan's case, in addition to challenging the government's right to try him before a military commission. The Geneva POW Convention, the court concluded, applies to everyone fighting in Afghanistan, regardless of their nationality or allegiance, merely because that country has ratified the treaty. This, of course, would extend Geneva protections to al Qaeda. The Geneva POW Convention, however, does not apply territorially. It creates burdens and benefits for one-state party vis-a-vis other state parties. Thus, if two Geneva parties go to war, they are bound by the convention regardless of where the war is fought. By the same token, if a Geneva party fights a non-Geneva party, the non-party does not automatically qualify for the treaty's protections — even if the conflict takes place on a party's territory. <snip> Indeed, under Article 2's plain meaning, individuals fighting for a non-party can only be brought within the treaty's reach if the entity itself "accepts and applies the provisions" of the Geneva Conventions. To achieve this, of course, the belligerent must be a state or, at a minimum, a group plausibly seeking recognition as the lawful government of a state. Private individuals, including trans-national terrorist organizations like al Qaeda, legally cannot make war on anyone, and they are incapable of acceding to the Geneva Conventions — formally or informally.

The downsides of granting Geneva convention protections to al Qaeda include:

...granting Geneva benefits (whether formally or under the guise of "customary" international law) merely works to legitimize the savage and illegal war al Qaeda has declared, and the ferocious tactics — particularly targeting civilians — it has adopted.

In other words, the tactics used by al Qaeda – all their tactics – become "fair game" for anyone else to use in war. Is that a can of worms we want to open?