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July 05, 2006

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» Hamdan myths and two questions from Appellate Law
Martin Lederman has a post on the Georgetown Law Faculty Blog entitled “Top Ten Myths About Hamdan, Geneva, and Interrogations” in which tries to rebut the interpretations of 1) David Rivkin; Cass Sunstein; Stephen Bainbridge; Glenn Greenwald; Lyle Den... [Read More]

» Analysis of Hamdan from Ginn Weblog
Georgetown Law Faculty Blog This faculty blog provides several posts anaylyzing the Hamdan decision. The most recent is Top Ten Myths About Hamdan, Geneva, and Interrogations, by Marty Lederman. Also included is a link to a Webcast of a panel... [Read More]

Comments

Carleton Wu

"[T]he Court, without any grounding in either American law or the Geneva Conventions, has effectively signed a treaty with al Qaeda for the protection of its terrorists."

My counter to this particular piece of nonsense is asking whether our signature on the International Convention for the Regulation of Whaling means that we now have a treaty with the whales...

Pithlord

On "Myth No. 7", you are probably right that no American tribunal will prosecute for conduct done in reliance on the OLC opinions. But if I were a member of this administration with responsibility for these acts, I wouldn't want to plan any international travel after January 2009.

In relation to Myth No. 10, I seriously think that a law like that could provoke the end of the Western Alliance. There is already plenty of anti-American feeling in other NATO countries, and a Darth Vader statute like this would be seen as the last straw.

Nom

The application of the UCMJ to detainees raises an interesting question. The purpose of the Court's ruling in Hamdan seems to indicate that detainees should be subject to the military justice system that our own soldiers, marines, sailors and airmen are subject to. However, US military personnel are validly subjected to "waterboarding, hypothermia, or other of degrading and humiliating techniques that were used on at least one detainee at GTMO." As anyone familiar with military training knows, simulated drownings, marches to exhaustion, hypothermia, sleep deprivation and personal degradation are typical training techniques. See what a Navy SEAL goes through: http://navyseals.com/community/navyseals/training_buds.cfm

"students tying their feet at the ankles and hands behind your backs at the wrist then entering the pool for some bobbing followed by a 50 meter swim.

Another fun filled event during first phase is surf torture. Torture? You bet it is. It all stems from the theory that a frogman must be intimately familiar with the water. During BUD/S training, the student is wet and sandy for most of the six months. Even the classroom sessions often include a trip or two to the surf zone to facilitate an alert posture during the class. Periodically the instructors include a little "cold water conditioning" in the training schedule - hence the term "surf torture". Basically the entire class must wade into the surf zone to their waste line, then sit down with arms linked. Mind you that the water in San Diego never gets above 68 during summer months and 58 during winter.


Soon the insipid cold sucks all of your body's warmth and the whole class shivers in unison as the waves crash over your heads. The plan calls for submersion to the brink of hypothermia, then to pull you out for some calisthenics to warm up - then back in the drink for some more conditioning. The "training session" lasts for about an hour. It's been shown to be a very effective way to teach a prospective SEAL to mentally fend off the effects of hypothermia - which could likely save your life in the future.


Oh yes - almost frog-ot to discuss HELL WEEK! My favorite week of training during BUD/S. It occurs the sixth week of First Phase, after about 30% of the class has already rung out. Hell Week is the real make or break test during first phase - and a defining moment in the lives and careers of most SEALs. Five days and five nights of non-stop training - with a total cumulative sleep time of about 2 hours!"

My question is, is the military somehow forbidden to treat Al Qaeda detainees as they treat their own soldiers? Is it plausible that the US would have agreed to a treaty that required this anomaly, or is such an interpretation "absurd" and to be avoided?


Nom

I do not share the concern that our troops will be placed in danger by passing a statute restricting the application of the Geneva Conventions to unlawful combatants. After all, al Qaeda clearly is not following the Conventions now! Since the only way to enforce the conventions is by retaliation (you mistreat our combatants, we mistreat yours), and the chances of US soldiers being captured by Al Qaeda are exceedingly slim (and would be mistreated anyway -beheadings, etc), this is a red herring.

And no signatory to the Conventions can have any beef with such a statute because their soldiers are not unlawful combatants. How would, say, Belgium, retaliate? They hold no US combatants in their custody, so they are incapable of enforcing the Conventions by mistreating US combatants. And I find it preposterous that Belgium would mistreat US combatants in retaliation for mistretament of Al Qaeda, rather than mistreatment of Belgian soldiers.

Nom

Pithlord, denizens of the fever swamps may salivate over some nation kidnapping a US offial to try them for "war crimes," but it will never happen. Any nation would know that any US President (Republican or Democrat) would authorize military force in such an event. Why, look at the extent that Israel is willing to go to free a captured corporal of the Israeli Defense Forces. The Israeli PM has indicated that the officials of the Palestinian Authority are legitimate military targets. The US would be no different. Imagine some European Prime Minister thinking of the sniper's 12.7 mm bullet (a Canadian sniper killed a terrorist in Afghanistan from over 1.5 miles away with one of these), a "snatch and grab" by Delta Force, or a Hellfire anti-tank missile from an aerial drone. Weighing the consequences, there will never be a decision to kidnap a former US official to satisfy any ideological urges.

Jason

Nom,

At the risk of stating the blindingly obvious, the main difference between what Navy Seals go through in the course of their training and the techniques applied during coercive interrogations would seem to be that what the Seals endure is optional. If one of them was to say, "That's it. This isn't for me. I quit." then that would be the end of it for that person. Not so for someone being interrogated.

Evelyn Blaine

I think that Pithlord's comment referred to voluntary foreign travel by ex-members of the administration, not to kidnapping. Anyone who travels to a state, unless he has diplomatic immunity, subjects himself to the jurisdiction of that state's courts; if he has undertaken acts that might plausibly be considered war crimes and the state to which he's travelling asserts universal jurisdiction over such offenses, then he should be aware of the risks he's running. For a European government to prosecute a former American official, out of office and travelling without diplomatic immunity, under such circumstances might raise the ire of some in the US, but it would clearly not be in any way comparable to the kidnapping of Gilad Shalit from Israeli soil by a terrorist organization.

Nom

Jason, I must say that Navy SEAL training applies in times of a mandatory draft, so it isn't always voluntary. And, if the Navy has a shortage of SEALs (as they do today), they can most assuredly force Navy sailors to endure the training (even absent a draft). (From personal experience, in the Army, today, if you sign up as a JAG, the Army has the right to switch you in to infantry against your will). Is your position that the military is somehow legally precluded form forcing sailors against their will to endure SEAL training? I can assure you that you are wrong. When you are in the military, you go where you are needed, regardless of what position you volunteered for.

Evelyn, I understoof Pithlord's comment as you interpret it. However, I believe the reaction of any US President would be the same. Witness the "Invade the Hague Act" passed overwhelmingly by Congress and signed into law by President Clinton authorizing military force to free any American held by the Int'l Criminal Court. I have little doubt that if Rumsfeld is vacationing in Nice in 2009 and is apprehended by the authorities for "war crimes", the response would be swift and there will be a lot of disheveled berets.

Jason

Nom,

Even in the case of a draft or switching of service types, I still believe that if a person objected strongly to a certain type of "training", then there could be a way around it. For example, what if a person had a certain type of pre-existing heart condition? That alone could even get them out of the draft all together. (In fact, there are people who have gotten out of the draft on the basis of much flimsier excuses.)

And even if there wasn't a way out of some of the "tougher" aspects of training, there are still significant differences. For one, trainees are getting the treatment for, well, training, right? People are watching over them, concerned for their health. If a trainee wasn't going to cut it, someone would put an end to it. There’s a limit. The same just isn't true of someone who is being subjected to a harsh interrogation.

There’s more, but this is just getting silly. I can’t believe you really don’t see the difference. And if you don’t at this point, nothing I (or anyone else) says is going to change your mind.

S.cotus

A Navy Seal that didn't want to train to be a Navy Seal, because Hell Week was too hellish, would, ironically, be subject to a court-martial, under the UCMJ. (Likely, the "penalty" would be administrative, even if we were drafting seals, which is unlikely.)

As to whales, our treaties are with other nations. Whether a white (or their next friends) have a private right of action, is a different story/

Jacob Howley

Nom,
A nitpicky factual point, but FYI: President Clinton did not sign the American Servicemembers' Protection Act (a/k/a the Hague Invasion Act). Senator Jesse Helms introduced the ASPA as an amendment to the Defense Authorization Act passed in August 2002, during President Bush's term in office. Clinton DID sign the Rome Treaty, indicating our accession to the ICC. President Bush "un-signed" us from that treaty.

akr

I'd like to get back to the legal arguments Marty raises.

I'm still not convinced that the Stevens opinion really says that Common Article III is enforceable except through Article 21. Sections VI(D)ii and iii have to be read in conjunction with section VI(D)i. Everything that follows I think assumes that (D)(i)'s reasoning about Article 21 applies.

So, Stevens doesn't have to engage Eisentrager. (Kennedy is less cautious here and certainly does have the true but unnecessary lines about the Geneva Convention being a treaty and therefore the law of the land.)

But the Stevens opinion does hold - not just say, but hold - that Common Article III applies to the people we are holding because conflicts that are not "international" in the context of the Geneva conventions includes not just civil wars, but all conflicts that are other than those between signatory nation states (at least as to persons captured within the territory of a signatory, i.e., Afghanistan), and that it therefore includes what the Administration likes to call enemy combatants (not acknowledging the necessity of determining whether a particular individual is an enemy combatant, or just a bystander sold to us for bounty by Afghan warlords.)

My reading is that it is only because Stevens has to address the definition of what is not an "international" conflict within the meaning of the Geneva Conventions that he actually has to conclude that Article III is applicable. But that is still just a step on the way to the immediate task: the law of war includes this, therefore Article 21 governs, therefore the standards are enforceable and I don’t have to worry about Eisentrager.

So in my view the opinion only indirectly holds that Common Article III applies (but does not address the point of enforceability except as to standards of military justice by way of Article 21's reference to the law of war).

I like Walter Dellinger's view of the opinions as most importantly a defense of the rule of law and the fundamental principles of separation of powers. The important holding is not the Geneva Conventions, but the rejection of “I can do anything I want if I say it’s national security – if not by way of the Constitution, then by way of the AUMF”). I don't expect the outcome to be too impressive for those we now detain - we have too long a road back as a nation still to what I thought our values were. I expect the Congress to come up with a process, based on courts martial but with more deference to keeping improperly classified material away from defense attorneys, that I probably won't find adequate, but that I don't think the Court would find unconstitutional. I’m not sure what I would find unconstitutional.

You might want to look at the rules for abrogating the Geneva Conventions - not only is it a terrible idea in terms of protecting American soldiers and in terms of our standing in the world (including the necessary task of improving our efforts in the war of ideas against al Qaeda and likeminded groups) - but I believe there are time limits on backing out of the Conventions. Something like not during a particular conflict, and even if done in peacetime, not taking effect for a year?

p.lukasiak

War crimes culpability certainly would be a possibility for extreme techniques continued after last Thursday, when the government was put on notice that it is likely in violation of the criminal law. But in my view (for reasons I don't have time or space here to elaborate), due process would almost certainly prevent prosecution for any conduct undertaken in reliance upon reasonable OLC advice; and before last Thursday, the conclusion that CA3 did not apply to the conflict with Al Qaeda, although perhaps wrong, was certainly reasonable (indeed, it was accepted by the now-Chief Justice of the United States). I know others will disagree with me on this. But I think it's safe to say, at the very least, that neither this Administration nor any future Administration will prosecute U.S. officials under the War Crimes Act for violations CA3 against Al Qaeda that occurred prior to June 29, 2006.

Did some German judges think that Hitler was well within his legal authority to authorize the atrocities of the Nazi regime during WWII?

I'm sorry, but I don't buy the "Roberts thought the President had the power, therefore war crimes are not prosecutable" argument. As you note elsewhere "the plain terms of CA3 indicate: CA3 proscribes, inter alia, 'violence to life and person, and "outrages upon personal dignity" and "humiliating and degrading treatment' -- without qualification. These standards are not -- at least on the face of it -- 'contextual'; they don't shift with the reasons for the interrogation, and they appear to prohibit much of what the Pentagon and CIA have been doing".

[Marty responds: I don't disagree that *if* Common Article 3 clearly protected suspected Al Qaeda detainees, then some of the reported interrogation techniques would fairly clearly violate Common Article 3. But until last Thursday, there was a serious and reasonable debate about whether Common Article 3 did apply to the conflict against Al Qaeda. I happen to think the Court got it right -- but the President and the Chief Justice thought otherwise. Therefore, I think it was reasonable -- again, *before* last Thursday -- for CIA interrogators to rely on OLC/Presidential advice that CA3 did not apply. And because the prosecuting authority -- not simply their lawyer -- was telling them that CA3 didn't apply, I think due process would prevent prosceution for conduct undertaken in reasonable reliance on that legal judgment.

Such reliance would no longer be reasonable -- which is why I suspect that interrogation practices changed sometime last Thursday afternoon.]

Anderson

but I believe there are time limits on backing out of the Conventions. Something like not during a particular conflict, and even if done in peacetime, not taking effect for a year?

Alas, if the Congress is so eager to torture people that we ditch Geneva, I must doubt that that same Congress will care much about complying with the prescribed exit procedures.

Charles Gittings

Marty,

"But until last Thursday, there was a serious and reasonable debate about whether Common Article 3 did apply to the conflict against Al Qaeda..."

I actually think you are mistating the facts there Marty: there's more than one question involved, and the administration's arguments have never been reasonable on any of them.

First Q: What conflict or armed occupation are we talking about?

CA2 defines an int'l armed conflict as one between two or more partices to Geneva.

CA2 also covers cases of armed occupation within the territory of the a party to Geneva.

CA3 defines a non-int'l armed conflict as one occuring in the territory of a party that is not covered by CA2.

The administration's arguments here have never been reasonable. They argue that al Qaeda is not a nation yet insist that the war with al qaeda is international in *scope* because they operate all over the world.

That's a fallacious argument where they are trying to have it both ways at once: heads I win tails you loose.


Second Q: Does that conflict fall under CA2 or CA3.

In fact, this one falls under CA2 IMO: it's an armed occupation of every nation in which alleged Qaeda detainees have been captured, international because the US is operating in the territories of other parties.

Unless we admit that it is silly to call this a conflict at all (correct), except that it is a war / occupation in Afghanistan and Iraq (both on-going).

I could go on, but the point is that there are reasonable questions about whether the conflict falls under CA2 or CA3, but there are no reasonable question at all about whether or not al Qaeda detainees are protected by Geneva: they are either proteced by CA3 or they are proteced by CA2 and Geneva IV art. 4.

*

Further, there is no immunity for war crimes here. See IMT arts. 7-8, the Geneva Grave breach provisions stating that no party may absolve themselves from responsibility, and 18 USC 2441.

See also CA1.

Far from constituting a defense, the OLC memos themselves represent offenses p. 18 USC 371 re 18 USC 2441. There has been probable cause for an indictment since 2002.02.07. There's enough evidence now to support a directed verdict of guilt.

Pithlord

Nom,

Your comments reveal why I think Canada should give notice that it is leaving the Nuclear Proliferation Treaty, and develop nuclear weapons. We would then be in a pretty good position to deter attacks from lunatics like yourself.

Bruce Moomaw

Another relevant point: CA 3 was explicitly written to defend the right to fair treatment and a fair trial of civilians captured and ACCUSED of being collaborators with the enemy. And that is exactly what a landslide majority of the Gitmo inmates are. Surveys by Seton Hall University and the National Journal of the military's own official records on their capture show that an astonishing 86% of them were not captured "on the battlefield" (contrary to Bush's constantly-repeated howler), but turned in by Pakistani or Afghan groups, very often for huge monetary rewards offered by the US, and very often under circumstances in which the actual evidence against them is (to quote Kevin Drum) "laughably weak":
http://www.washingtonmonthly.com/archives/individual/2006_02/008230.php
http://www.washingtonmonthly.com/archives/individual/2006_02/008244.php
http://www.washingtonmonthly.com/archives/individual/2006_06/009109.php

Andrew Hyman

Correct me if I'm wrong, but didn't the Court say in Hamdan that the "UCMJ conditions the President's use of military commissions on compliance with ... the American common law of war" including the Geneva Conventions? So, couldn't Congress simply amend the UCMJ to clarify that this condition of the UCMJ does not apply to Al Qaeda? That wouldn't violate the Geneva Conventions, would it? After all, the President would still have power to confer Geneva Convention protections on Al Qaeda.

Richard Samp

Marty,
I just read your post and thought it was quite good. But it seems pretty clear to me that there will be no effective enforcement of CA3 in the US Courts unless courts are willing to hold that CA3 "rights" are privately enforceable by individuals. (I see little chance of criminal enforcement through War Crimes Act charges for anyone who acted in a manner that resembled authorized CIA policy, however debatable that policy may be.) So what is your view on that issue: are Geneva rights privately enforceable? That is an issue that the D.C. Circuit obviously will have to address quite soon in connection with the Guantanamo detainees cases. Given the unwillingness of even a single justice in Hamdan to hint that there is a private right of action, and given the relatively clear language of the GCs on this point, it is hard for me to believe that the D.C. Circuit will rule for the detainees. And in the absence of such private enforcement, the significance of Hamdan's CA3 holding is diminished.

Bruce C Dubey

Elaine,
You mentioned the kidnapping of an Israeli soldier from Israel. Two points I'd like to make. Isn't this not a kidnapping, but a capture, given that an undeclared or virtual state of war exists between the militant group and Israel? Wouldn't a better example have been the actual kidnapping of a non-combatant, nuclear whistleblower Mordechai Vanunu, by Israel's Mossad in Rome back in 1986? Released from prison after 18 years, 2/3 of that in solitary confinement, the remainder under severe restrictions, he is still denied freedom of speech or association, and disallowed to leave Israel. Amnesty International and other such groups consider his treatment to be in violation of human rights.

Bruce C Dubey

Elaine,
It is disengenuous not to mention the full context.

Israel, Lebanon, and Palestine
Tariq Ali, John Berger, Noam Chomsky, Eduardo Galeano, Naomi Klein, Harold Pinter, Arundhati Roy, José Saramago & Howard Zinn
July 19, 2006
The latest chapter of the conflict between Israel and Palestine began when Israeli forces abducted two civilians, a doctor and his brother, from Gaza. An incident scarcely reported anywhere, except in the Turkish press. The following day the Palestinians took an Israeli soldier prisoner - and proposed a negotiated exchange against prisoners taken by the Israelis - there are approximately 10,000 in Israeli jails.
That this "kidnapping" was considered an outrage, whereas the illegal military occupation of the West Bank and the systematic appropriation of its natural resources - most particularly that of water - by the Israeli Defence (!) Forces is considered a regrettable but realistic fact of life, is typical of the double standards repeatedly employed by the West in face of what has befallen the Palestinians, on the land alloted to them by international agreements, during the last seventy years.

Bruce C Dubey

Elaine,
I should have caught that the rest of the peice was unknowingly truncated (see below). I would add that, while you may not have had access at the time you posted to the abduction of two Palestinians the previous day, it doesn't excuse a callous disregard for the rest of the context--including numerous previous Israeli abductions of Palestinians with little or no justification--which is widely available.

(cont.)
Today outrage follows outrage; makeshift missiles cross sophisticated ones. The latter usually find their target situated where the disinherited and crowded poor live, waiting for what was once called Justice. Both categories of missile rip bodies apart horribly - who but field commanders can forget this for a moment?
Each provocation and counter-provocation is contested and preached over. But the subsequent arguments, accusations and vows, all serve as a distraction in order to divert world attention from a long-term military, economic and geographic practice whose political aim is nothing less than the liquidation of the Palestinian nation.
This has to be said loud and clear for the practice, only half declared and often covert, is advancing fast these days, and, in our opinion, it must be unceasingly and eternally recognised for what it is and resisted.
http://www.chomsky.info/letters/20060719.htm

Bruce C Dubey

Regarding possible war crimes or human rights prosecution of Bush administration officials and others directly involved, I have no legal training in either domestic or international law to make any definitive judgment. That said, however so much as I would like to see those people tried, there seems little likelihood of that happening either here or anywhere else.

The main obstacle outside of this country would be obtaining sufficient evidence, and an extreme reluctance by foreign governments to endanger their relationship with the U.S.

Domestically, a lack of popular and government support to pursue the matter tends to rule out any punishment or censor. I could foresee a slight chance somewhere down the line that rights groups could bring the matter before the judicial branch on behalf of victims, and that the judicial branch would be forced to act under the rule of law.

In either instance, a further encumbrance is that it will be seen as misguided policy that is atypical of U.S. aims and ideals. Not that I agree that excuses it or allows for a free pass, because it doesn't, and holding those responsible accountable for their roles is necessary for moral, justice, and deterrent reasons.

Irrespective of any such occurrence, it is my belief the Bush administration and its inhumane policies ignorantly committed in our name, purportedly for our security, should be held in perpetual disgrace.

Bruce C Dubey

Nom,
Jason and others have pointed out many of the fallacies in your interesting, if ridiculously ignorant, argument already.

If I may add and embellish to that. Draft or no, there are obvious reasons why only those willing and capable of subjecting themselves to the rigors of Navy SEAL and other ultra-elite military unit training would be chosen or allowed to do so. Those reasons are not that difficult to fathom if one is not blindly clinging to an ideology. At any rate, it could also be safely assumed that those circumstances necessitating a military draft would result in a plentiful supply of volunteers for such elite forces.

Those undergoing such rigorous training are fully aware of their circumstance, are typically informed of the how's and why's of their training, if not before, then after. They have no illusions: that they are being trained, not being held malevolently against their will in captivity; that their training is to benefit them and their country, not merely to induce pain, stress and terror as retribution or to extract information.

Furthermore, unlike those being tortured, they are cognizant that their is a limit to how much they are forced to endure, and a limit to the period of hardship. Unlike torture victims, there is no expectation given, implicit or explicit, that they would be deliberately murdered arbitrarily or for some failure. Unlike those being tortured, there are typically interspersed periods with some sense of normality. The kind of encouragement given cannot be compared with that given to torture victims. One doesn’t haven’t to have extensive knowledge of the atrocities at Abu Graib and elsewhere to realize that torture frequently constitutes a gross disregard for human health and life, unlike even the most rigorous training exercises, which are carefully calibrated. The trainee and trainer are both acutely aware that the trainee’s health and well-being are of prime importance, that anything else is counterproductive.

The psychological and physical suffering undergone in such military training do not have lasting adverse effect—rather, quite the opposite could be asserted. Conversely, this isn’t true for the victims of torture and inhumane treatment. Moreover, the extent of that suffering cannot and should not be compared. You might as well have compared Navy SEAL’s training to Holocaust victims. Can you now fully comprehend and appreciate how idiotic and inappropriate your posting was?

As an aside, what about the innocents who are often falsely detained and then senselessly tortured that your ludicrous simile ignores?

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