September 15, 2006

The discord, among Republicans, over the detainees legislation.

Carl Hulse at the NYT highlights the problem this presents for the fall elections:
Instead of drawing contrasts with Democrats, the president’s call for creating military tribunals to try terror suspects — a key substantive and political component of his fall agenda — has erupted into a remarkably intense clash pitting some of the best-known warriors in the Republican Party against Mr. Bush and the Congressional leadership....

Democrats have so far remained on the sidelines, sidestepping Republican efforts to draw them into a fight over Mr. Bush’s leadership on national security heading toward the midterm election. Democrats are rapt spectators, however, shielded by the stern opposition to the president being expressed by three Republicans with impeccable credentials on military matters: Senators John McCain of Arizona, John W. Warner of Virginia and Lindsey Graham of South Carolina. The three were joined on Thursday by Colin L. Powell, formerly the secretary of state and the chairman of the Joint Chiefs of Staff, in challenging the administration’s approach....

Republicans concede that the fight among themselves is a major political distraction, particularly given the credentials of the Republican opposition, led by Mr. McCain, the former prisoner of war in Vietnam who was tortured in captivity....

House Republicans say the Senate plan is misguided and will hobble the American military. Representative Duncan Hunter, Republican of California and chairman of the House Armed Services Committee, said it would lead to “the lawyer brigade” being attached to combat troops to counsel detainees.

Representative Peter T. King, Republican of New York and chairman of the Homeland Security Committee, said: “I just think John McCain is wrong on this. If we capture bin Laden tomorrow and we have to hold his head under water to find out when the next attack is going to happen, we ought to be able to do it.”
I think it is good for congressional Republicans -- however it affects them in the elections -- to think and debate independently of the President. And I wonder how much they really "concede" this is a "distraction" for them. It looked as though they wanted to spend this time distinguishing themselves from the Democrats and driving home the message that Democrats don't care enough about national defense. But if they'd all just gotten into line and done exactly what the President wants, it would firm up the Democrats argument that the congressional Republicans are just following the President, that they don't exercise any significant oversight, and that they've lost track of American values of fairness and decency.

For the Republicans to debate among themselves should make a positive impression on people: it shows that they aren't mere puppets of the President, that they are taking the entire controversy seriously, and that they are not merely suckers for every national security argument that comes along but are capable of weighing the countervailing factors competently.

The Democrats, it seems to me, have to convince us that unless they gain substantial power in Congress, important values will go unserved. You know those Republicans. They'll lunge blindly forward at every mention of the phrase "national security." But if the Republicans themselves demonstrate their ability to weigh all the considerations in a sophisticated and mature fashion, there's much less reason to want to empower Democrats, who -- we may fear -- will only undervalue national security and fall prey to excessive enthusiasm for protecting the enemy.

So I think that despite the discord among the Republicans, a contrast between Republicans and Democrats is being drawn, and it may -- perhaps unintentionally -- make Republicans more palatable to moderate voters in the next election. And then there is '08... and McCain is inspiring respect right now.

ADDED: The linked article is attracting commentary, some bloggers are stating opposition to the President's proposal, and some, like me, address the political dynamics. Rightwing Nuthouse says:
[T[he fact that the debate is taking place almost solely and exclusively among Republicans and conservatives says volumes about the cynicism and lack of courage on the part of Democrats in both houses of Congress.
It's hard to resists standing back and letting your opponents beat each other up, but, as I've said, you risk looking irrelevant or worse. Here's Matthew Yglesias:
[B]y relying on McCain et. al. to do the heavily lifting, Democrats are essentially denying themselves the possiblity of reaping whatever rewards may exist for standing up for basic decency and morality against Bush's depredations....

[I]f you worry that liberals are timid and easily frightened, well, then this is some fairly timid and frightened-looking behavior....
There's also the fact that it means something different when Republicans stand up to the President and when they back off a step from national security. The Democrats can't do the same thing. They've been opposing Bush for everything they can think of for the longest time, and they have a reputation for undervaluing national security that they would only call more attention to. So they're keeping a low profile, and, as Yglesias says, looking pretty timid and scared.

CORRECTION NOTED: A commenter shames me out of using "forefront" as a verb, a problem I'd never given one second of thought to before. The dictionary doesn't support it, and Googling "forefronting," I get only 10 hits. But it should be a verb, and maybe if I'd left it, I'd get to be the quote in the OED for "forefront" as a verb, if the OED counted bloggers, I mean, which it'd be a fool to do. Anyway, "front" is a verb, and "forego" is a verb. QED.

60 comments:

Doyle said...

For the Republicans to debate among themselves should make a positive impression on people

Funny, internal disagreement never seems to play well in the MSM for Democrats.

Whether or not it's good for the Republicans' midterm outlook, it is a most welcome sign that our country may not go completely off the rails yet.

MadisonMan said...

I typically ignore any statement, such as Peter King's, that starts "If we capture bin Laden tomorrow..." as capturing him clearly is not a priority of the US, and my opinion is that he's already dead. It is a little alarming that a Representative thinks torture is a-ok and worse, that he thinks any information gained through torture is credible.

Ann Althouse said...

Yeah, I think King comes across as a bit of an idiot. Let's ignore everything else because wouldn't you really love to put bin Laden's head in a bucket (and oh of course he'd have undisclosed info that would be the only way we could stop the next attack and putting his head underwater would work and would also be the only way to get it out of him)? Is that a hyper-constrained hypothetical or a childish statement of how much he'd like to torment bin Laden or just a cheap political ploy by someone who assumes we have a childish urge to put bin Laden's head in a bucket of water)?

DaveG said...

With the understanding that this was not the crux of the posting, I wonder what the unintended consequences would be if McCain, et al had their way. Is a "take no prisoners" strategy based on "better dead than suing me" really that much better?

J said...

The opposition from McCain and Powell is fascinating, and makes me wonder if we're seeing a shift in what are considered normal, acceptable tactics. Remember that there was a time when firing at the enemy from a position of cover or concealment was considered cowardly (maybe even criminal), and I suspect many battle veterans were appalled that their side would stoop so low.

George said...

Here's an article from today's NY Post about the absurd degree to which the US mollycoddles terrorists at Gitmo....

http://www.nypost.com/postopinion/opedcolumnists/a_deadly_kindness_opedcolumnists_richard_miniter.htm

The author Richard Miniter claims that 20 of the 'detainees' (sounds like 8th grade detention) have personal knowledge of 9/11. If so, the question should be why haven't we executed them yet, not how should be we treating them.

mikeski said...

Ann, "forefronts"? Gah.

Freder Frederson said...

The opposition from McCain and Powell is fascinating, and makes me wonder if we're seeing a shift in what are considered normal, acceptable tactics. Remember that there was a time when firing at the enemy from a position of cover or concealment was considered cowardly (maybe even criminal), and I suspect many battle veterans were appalled that their side would stoop so low.

To imply that McCain and Powell are somehow "old school" and "quaint" and just need to get with the program and realize we need to torture these detainees is despicable. They understand that our standing in the world and our status as a civilized country is at stake.

To use a myth that "firing at the enemy from a position of cover or concealment was considered cowardly (maybe even criminal)" at some time in the past (because I assume you remember from elementary school history you learned the British thought the Americans were cowardly and ungentlemanly in the Revolution because they fought from behind walls and trees) displays a shocking ignorance of history or deliberate dishonesty.

Armies of the Napoleanic era didn't stand up and fight in close ranks (including the Americans in the Revolution--in spite of what you may have learned in grade school) because it was cowardly and criminal not to do so, but because the weapons and tactics of the time demanded it. The military muskets were so inaccurate and took so long to load that the massed firepower from a close line was the only way to present an effective assault and defend against counterattacks by cavalry.

Freder Frederson said...

The author Richard Miniter claims that 20 of the 'detainees' (sounds like 8th grade detention) have personal knowledge of 9/11. If so, the question should be why haven't we executed them yet, not how should be we treating them.

How very 'Alice in Wonderland' of you. "Sentence first, trial later".

Shouldn't the question be, if this is indeed true (and what the hell does "personal knowledge of 9/11" even mean? everyone posting here has "personal knowledge" of 9/11) why the hell they haven't been charged?

David said...

Our Islamist enemies decapitate capitves and murder our servicmen (Robert Stetham, Navy Diver) while we hold up the Geneva Conventions as the civilized way to treat uniformed captives.

We need an updated definition of torture and an updated Geneva Convention that deals with terrorists.

John McCain may have cost himself the presdency in 2008 because of his short-sighted stand. There is obviously a problem in the military when the likes of Murtha, McCain, and Powell decide they don't understand assymetrical warfare.

Too Many Jims said...

Three cheers for the framers. It takes 3 Senators who are not up for election this year to exercise independence.

Freder Frederson said...

Our Islamist enemies decapitate capitves and murder our servicmen (Robert Stetham, Navy Diver) while we hold up the Geneva Conventions as the civilized way to treat uniformed captives.

And your point is what? That we should act like Islamist terrorists? I thought the whole point of this entire exercise was to show the world, and especially the people in the Muslim world, that we are better than the terrorist.

We need an updated definition of torture and an updated Geneva Convention that deals with terrorists.

Well, then let's open an international conference to update the Conventions to address our concerns. Get it signed, present it to the Congress for ratification, and have it made the law of the land. Until then, to paraphrase Rumsfeld, we go to war with the Conventions we have, not the Conventions we want.

David said...

Freder;

That is the problem. We have no conventions that cover assymetrical warfare and the treatment of non-uniformed beligerents.

While we attend to the niceties of not offending those in captivity who have sworn to kill us on sight, the rest hide behind the inherent weakness of the Geneva Convention.

Where is the hue and cry against an enemy that does not wear a uniform and hides behind civilians?

The moral high ground of the Geneva Conventions is a suicide pact in the current war! If the best rebuttal McCain, et al, can come up with is that failure to follow Geneva Conventions puts our troops at risk, here is a newsflash for you. The Islamofascists don't follow the Geneva Conventions. They have the FATWA conventions which authorizes them to commit murder and mayhem on infidels, non-believers, and apostates on sight.

That includes you Freder!

John said...

I beleive there is some political advantage for Republicans to openly debate this issue. Much more needs to be debated, such as: "Do the articles of the Geneva Conventions apply to non-signers and what distinguishes a "covered" combatant from a terrorist?"

BTW: Where does it state in the Conventions that hijacking multiple planes and using them as weapons to attack and kill innocent civilians in a sovereign nation that HAS signed the Conventions is acceptable? Or kidnapping and beheading of non-combatant civilians for the purposes of exploitation and perverted publicity is legitimate?

Just curious.

John said...

And, oh by the way. While we debate what the proper way to write or interpret the law is, we continue to see our enemy do things like this:

BAGHDAD, Iraq (AP) -- Police found 30 bodies bearing signs of torture Friday, the latest in a wave of sectarian killings sweeping the Iraqi capital despite a monthlong security operation.

Al Maviva said...

Let's be clear about what the Third Geneva Convention forbids.

1) The trial of captured EPW (which AQ now are) in ordinary courts of law, except for war crimes.

2) Degrading or humiliating treatment.

3) Coersion in questioning.

The first prohibition pretty much rules out sending AQ to our Article III courts. It would be a facial violation of the Conventions.

The second prohibition rules out much strenuous interrogation - mocking out the EPW for having lost, etc. One wonders too, since we have bought into the Al Qaidists broad definition of humiliating, if being shot at and captured by female soldiers and marines is not also degrading and humiliating treatment.

The third prohibition mentioned above prohibits most of our interrogation techniques - I'm not talking torture, I'm talking about the ones listed in existing field manuals.

Since the Courts and Congress have made much hay by standing up for what's right, but haven't been able to find time to say exactly what they want the executive branch to do, I would hope that Bush would punt on this. Holding captured AQ indefinitely is wrong, we're told; I'm sure the traditional and customary international law remedy for non-uniformed fighters lacking a chain of command (drum head court martial and execution) would be found unfit; and we know trying them in a regular court is wrong. So I am hoping President Bush will tell Congress, loudly and repeatedly, "I am ceasing all interrogation and military tribunals and preparing to relase captured Al Qaida, per your request, unless you spell out specifically which interrogation methods would be permissible to you, and how we are to dispose of captured AQ.

Congress, the Court, and for that matter these sanctimonious NGOs, have made a lot of profit from screaming about how everything the Administration has done is illegal, immoral, and now, has undermined our moral case against terrorism. (Thanks, General Powell! Hey, does ordering a subordinate to leak CIA arms control officials' names restore our moral authority?)

It's time these grandstanders be held accountable, and put up or shut up.

Freder Frederson said...

"Do the articles of the Geneva Conventions apply to non-signers and what distinguishes a "covered" combatant from a terrorist?"

The Supreme Court already has answered these questions in Hamdan. Just because you don't like the answer, doesn't mean you get to pretend they have been addressed and answered already. As it stands now, the two bills the president desperately wants passed are going to go directly to the Supreme Court and be rejected (unless of course, Stevens dies in the interim).

Where is the hue and cry against an enemy that does not wear a uniform and hides behind civilians?

Demanding that we uphold civilized standards of conduct in no way validates or excuses the crimes of the terrorists. There is constant "hue and cry" about the tactics of the terrorists. What on earth are you talking about?

The moral high ground of the Geneva Conventions is a suicide pact in the current war

How? This is the constant cry, but how would complying with Geneva hamper our efforts. Not one shred of evidence has been produced to support this claim, just vague statements that unnamed "techniques" have yielded "valuable" evidence and foiled plots and that the detainees we have are "dangerous" and "bad" people and if we let them go they would certainly commit further acts of terror.

Now go ahead. Trot out the ticking timebomb scenario. I know it's coming at some point. We might as well start arguing about it.

David said...

John, We are moving away from the Geneva Conventions and, taking Freders less than perfect advice, the current administration is attempting to define rules for non-uniformed, non signatories to Geneva Convention protocols.

Setting down rules for interrogation has failed so far as our elected officials recoil in horror at even the mildest form of torture. This in the face of Hezbollah building bomb rooms in civilian housing in Lebanon then standing ready to film the atrocity of civilian casualties when the house is taken out. Listen for the outrage and all you hear is crickets.

The administration is tackling the thorny issue of trials involving non-state combatants (Terrorists) with no success. Our elected officials are horrified that we are not giving captured Islamofascist Miranda rights and access to top secret information regarding intelligence gathered to prosecute them. So military tribunals are out even if the classified information used against the accused is available to the appropriately cleared defense lawyer.

The only winners in the current scenario is the terrorists!

Freder Frederson said...

1) The trial of captured EPW (which AQ now are) in ordinary courts of law, except for war crimes.

AQ detainees are not prisoners of war, they are in the same category as spies or ordinary criminals captured in a war zone by an occupying power. They can be charged and tried for crimes provided the tribunals adhere to internationally recognized due process.

That was the crux of the Hamdan case. The Supreme Court found that Bush's proposed tribunals didn't even meet the minimal standards required by the Conventions (which btw our Military lawyers tried to tell him from the beginning).

Bruce Hayden said...

Bush is flatly not going to release the bulk of the Gitmo detainees. The vast majority of the not very dangerous ones have already been released or sent elsewhere. And we are left with the more hard core elements, including some very hard core terrorists. Add to this the results of an early experiment that resulted in some dozen or so former detainees showing up again in Afganistan either to be killed or captured.

The problem is that if you don't keep them, then what do you do with them? In a lot of cases, it would be nice to send them back to their home country, but for most of these remaining detainees, either their home country doesn't want them back, or is a human rights violator likely to do much worse to them.

The final solution though, should the choice be between releasing them and sending them somewhere, is going to be to send them back to where they were caught (mostly Afghanistan) and let the authorities there handle the problem. Yes, there is a likelyhood of torture. And, of death. But given the choice of finding them again on the other side of a battle, and that, this Administration is likely to go with sending them back. Not pretty, but that is war.

Freder Frederson said...

Our elected officials are horrified that we are not giving captured Islamofascist Miranda rights and access to top secret information regarding intelligence gathered to prosecute them.

That is a gross exaggeration of the kinds of guarantees that all but the most radical civil rights advocates are seeking, and certainly grossly mischaracterizes the position of any national elected official.

The President could end this fiasco now by simply adhering to the protocols and procedures suggested by the professional military JAG corps. A position that he rejected but that is fully in accordance with the current UCMJ and would satisfy both due process and security concerns.

David said...

Freder;

Our Judicial system is not set up to try war criminals. That is why we should be using military tribunals, or some such iteration, to prosecute them.

The ultimate absurdity of using the civilian judicial system would be to send all the captured terrorists to a jurisdiction covered by the 9th circuit court of appeals. Defendant is free on bail pending the issuance of a decision.

Hamdan was wrong and will cost lives. It is an example of why military courts should handle this sort of activity. Hamdan will be the poster child of why these judges do not have jurisdiction.

Drew said...

The left argue that bin Laden and Al Qaeda should be the primary targets of the war on terror. The right sees the global war on terror as a broader campaign against "Islamofascists".

Will we ever find consensus regarding execution of the war on terror if the fundamental focus of the war is in dispute?

Tom C said...

Ann, I'm jumping back to the original post to disagree with your proposition that the argument is good for Republicans. This may be true in the long term, but in the short term all people will see is, "Well, maybe the Democrats aren't just blowing partisan smoke...look, a bunch of Republicans think he's gone over the edge, too."

Another interesting aspect here is that, last week, all we were reading was stories about the Return of the Empire (Karl Rove) and how he had come up with a masterstroke strategy to force the Democrats into their weakness -- thus, stealing back the mid-term elections. I guess he forgot to call the republican senators, eh? And now, will anyone in the mainstream press please say what is obvious...George Bush is the earliest lame duck in presidential history (has been since May of 2005). Karl Rove or no Karl Rove.

Freder Frederson said...

"I am ceasing all interrogation and military tribunals and preparing to relase captured Al Qaida, per your request, unless you spell out specifically which interrogation methods would be permissible to you, and how we are to dispose of captured AQ.

Or the president could just quit his grandstanding and announce the CIA will adhere to the Army Field Manual which explicitly rejects techniques that he apparently believes are effective and necessary.

Doyle said...

The moral high ground of the Geneva Conventions is a suicide pact in the current war!

Geez, the Constitution, the Geneva Conventions... What were we thinking signing all these suicide pacts?

David said...

Freder, I agree with you on one aspect. They are spies and should be treated as such. International standards and protocol is a joke. Have you forgotten the many attempts to characterize American troops as international war criminals at the U.N.? How about Israel? Everything they do is apparently a human rights violation.

The fallacy to your logic is the existence of a very real anti-Americanism and Anti-Israel sentiment that is prevalent in the world today. Nothing, I repeat nothing, done by the U.S. or Israel will ever be acceptable.

Freder Frederson said...

Our Judicial system is not set up to try war criminals. That is why we should be using military tribunals, or some such iteration, to prosecute them.

Excuse me but where did I say this?

If you bother to read my posts, you will see I am advocating what the military has advocated all along, a system of military trials that is in accordance with the current UCMJ (which would allow final appeal to civilian courts).

David said...

Doyle, Why is it that left wing democrats always preach a "living Constitution" except when it comes to preserving our own safety when faced with the new concept of assymetrical warfare?

David said...

Freder, you didn't say that, I did! The game is to allow military tribunals but to put so many restrictions on them as to make them virtually worthless. Not to mention if the endless right to appeal is part of the package. There should be an automatic review process that should take, 30 days, or sooner, and sentence carried out.

Your assumption that all JAG officers are Hawks is ludicrous. It would be a mistake to believe that there are no JAG officers who support the ACLU.

Meanwhile, the attacks continue.

Doyle said...

Do you have any examples of such left wing Democrats? Or was that just the broadest brush you could get your hands on?

Allowing the president to violate any laws he deems necessary in order to Protect the Nation is not what I call a "living Constitution." That is a dead Constitution.

RogerA said...

While there may be a "revolt" among republicans, McCain, Graham and Warner are only three members of the caucus, and no matter what bill passes in the senate, it still has to go to conference. Unless there is some kind of filibuster arrangement, I don't see this committee vote as being decisive--and even if it got out of the Senate, it probably won't get thru conference looking too much like the senate version.

Freder Frederson said...

There should be an automatic review process that should take, 30 days, or sooner, and sentence carried out.

Yeah, I know in your perfect world, there wouldn't be any trials at all, we would just take them out to a wall behind Gitmo and shoot them.

Your assumption that all JAG officers are Hawks is ludicrous. It would be a mistake to believe that there are no JAG officers who support the ACLU.

Yep, you sure rise to the upper levels of the JAG corps and get to write proposals on trial procedures for military commissions by being a bleeding heart liberal who believes in coddling terrorists.

J said...
This comment has been removed by a blog administrator.
J said...

"To use a myth that "firing at the enemy from a position of cover or concealment was considered cowardly (maybe even criminal)" at some time in the past (because I assume you remember from elementary school history you learned the British thought the Americans were cowardly and ungentlemanly in the Revolution because they fought from behind walls and trees) displays a shocking ignorance of history or deliberate dishonesty"

To pretend that Napoleonic tactics didn't endure into WWI -http://www.spartacus.schoolnet.co.uk/FWWinfantry.htm - diplays a shocking ignorance of history or deliberate dishonesty. Or maybe you were taught in elementary school that military commanders see every threat coming and adjust long before what they used to do has stopped working. Those bayonets worked real good against machine guns and flame throwers.

RogerA said...

Based on what eventually passes the Congress and gets signed into law, I am not sure how many "prisoners" or "enemy combatants" or whatever, will survive the process of capture.

David said...

Freder; I couldn't have said it better!

Go to Law School, Harvard maybe, and get the government to pay for it by signing up for a tour of duty with the Judge Advocate General. Work within the system (JAG Corps) write a few dissenting opinions etc., as they come your way, and opt out on reenlistment.

Then join the ACLU and figure out a way to deprive the military of recruiting at your alma mater knowing that the Solomon Amendment won't be enforced. Could happen, non?

You are correct. It is not a perfect world and writing perfect legislation is impossible. Like Mary Shelley's Dr. Frankenstein, the monster that is created lurches around barely recognizeable as the sum of it's parts.

In this day and age Dr. Frankenstein would say "I did the best I could" which is not helpful when the monster attacks the creator.

Jeremy said...

Just a comment on McCain's "impeccable credentials." I tend to think that Democrats believe it and believe that Republicans believe it. But I don't think Republicans believe that McCain's credentials entitle him to anything more than a pension check. I think a lot of Republicans have had about enough of McCain.

David said...

Doyle, Ask Joe Lieberman and Hillary Clinton what happens when Democrats support the war and it's prosecution.

Bush is not violating the Constitution when it comes to Presidential power in time of war. What he is doing is exploring the parameters of that power in the face of leftists who deny the legitimacy of the Bush Administration and the prosecution of war over negotiation, appeasement, and dhimmitude.

Bruce Hayden said...

For any of you who think that Gitmo is that autrocious, here is the DoD's recent "Ten Facts about Guantanamo".

Doyle said...

Sounds good to me! Do they take reservations?

"Guantanamo Estates: Come for the cuisine. Stay for the ping pong!"

Abraham said...

Freder is right.

There. I said it. It didn't kill me.

There really is no reason why we can't have military tribunals that meet the requirements set by the SCOTUS and that meet the requirements of due process. The JAG officers really are professionals their advice should be followed. Even with these heightened rights, there is very little chance that any prisoner would win on the merits.

On the other hand, there is also no requirement that we hold tribunals at all. Freder is also correct that even though we give them some privileges of EPW, these guys are not actually EPW under our law or the Geneva Convention. There is no reason that I know of why they cannot be held until the end of armed hostilities, which in this conflict, is likely to be more or less indefinitely.

Steven said...

Actually, no, Ann, you can't get the OED cite for first using "forefront" as a verb.

To quote the OED-n-CD-ROM:

Hence 'forefront v. trans., to build a (new) forefront to.
1761 Sterne Tr. Shandy IV. xxxi, He would new fore~front his house, and add a new wing to make it even.

Al Maviva said...

Or the president could just quit his grandstanding and announce the CIA will adhere to the Army Field Manual which explicitly rejects techniques that he apparently believes are effective and necessary.

I'm calling bullsh1t on you Freder. Are you comfortable with the "fear up" approach detailed in the FM? How about "fear up harsh"? How is that not coercive or humiliating to captured EPW, in contravention of the letter of the Conventions?

Second, why are you opposed to Bush asking Congress to tell him precisely what they think is permissible? Seems to me, it's very democratic to ask Congress to vote on something right around election time, and to let the people take a vote on Congress shortly thereafter. Or are you one of the Dems Against Democracy?

Third, are you comfortable with trying AQ under the Uniform Code of Military Justice? You do realize that constitutional standards apply in courts martial under the UCMJ, right? That means no evidence without search warrants (except in the absence of a reasonable expectation of privacy); no coerced confessions; no interrogation following a request for an attorney - and I presume most intelligence collected regarding AQ would be inadmissible due to the methods or the inability to produce eyewitnesses to authenticate it, either for practical (soldiers PCS'ed, sources dead, disappeared; inability to compromise sigint/imint systems to terrorists in court) reasons. Are you really comfortable with granting AQ full constitutional rights just like our troops? Because that's what trying AQ under the UCMJ means. Or do you just throw around words like "Geneva Conventions" and "court martial" without knowing exactly what they entail? I'm beginning to supect the latter.

And truly, if Congress likes the FM, what's wrong with asking them to encode it? The damn thing doesn't even rise to the level of a regulation, it's just a policy that isn't even signed off on by civilian authority, the intel school and one of the major commands publish the thing. It's really funny seeing a pink striped liberal teeing off on Bush for consulting congress on an important issue. Very entertaining indeed.

dearieme said...

Enough of all this politics: I trust that you carefully distinguish "forego" and "forgo"?

Zarf said...
This comment has been removed by a blog administrator.
Zarf said...

I have failed to hear an answer about what the word torture means.

Does it mean slitting open someone's throat or is locking someone in a cold cell with loud music?

Does it mean making the prisoners wear dirty clothes?

Does denial of mashed potatos meet the torture test?

AST said...

What annoys me about Powell, McCain, Graham, et al. is their reasoning that we must be worried about "The world . . . doubt[ing] the moral basis of out fight against terrorism." I heard Graham on Hugh Hewitt's show yesterday and he was worried that the president's plan would result in our soldiers being abused in future wars.

That strikes me as speculative and ignores the fact that the people we're fighting are illegal combatants and have no intention of complying with the Geneva Conventions. If they had attacked the Eiffel Tower, would France care if we questioned the "moral basis" for their response?

The problem is that the terms of the convention are vague and overbroad. Graham seems to think that we should treat them as POWs to placate our future enemies. I suspect that the way things are going, the E.U. wouldn't be averse to excuse to detain and try American troops on the slightest pretext. I doubt the moral basis for their polical correctness.

Mark said...

I would use the World War II test for how America should treat enemy combatants who either don't wear a uniform or wear a false uniform.

During World War II, some German soldiers put on American uniforms and attacked other American soldiers. When these soldiers were captured, they were shot. They weren't sent to the United States, given legal council and trial.

Captured Japanese and German soldiers who did wear uniforms of their nation didn't get a trial by jury either.

International law should only apply when both sides of the conflict agree to comply with international law and actually make a reasonable attempt at compliance.

Mark said...

ast,

What annoys me about Powell, McCain, Graham, et al. is their reasoning that we must be worried about "The world . . . doubt[ing] the moral basis of out fight against terrorism."

Many people will doubt the moral basis of our fight against terrorism regardless of what America does.

Winning a non-binding popularity contest is of negligible importance compared to protecting classified information, obtaining information from terrorists and defeating the enemy.

Remember. America has not fought against an enemy that obeyed the "rules of war" since World War One.

So, the idea that America benefits from a "treat others the way you would like to be treated" policy goes against the last 85 years of American war history.

Mark said...

American policy regarding torture, treatment of detainees and civilian casualties in war should be determined on the basis of America's national interests. It should not be subject to a poll of the Arab street or even the South American street or the South Asian street.

If Colin Powell wants to win a popularity contest in the Phillipines, Egypt or Cambodia, let him apply for the job of Defense Minister of one of those nations.

The American people demand poltical leaders who are concerned about their safety, not being winning a high approval rating of people who have never set foot in the United States and would not be directly affected by a misguided national security policy.

Chuck DeVore said...

Much of this discussion escapes me. I've served for 23 years and am a LtCol in the reserves. My understanding of the Geneva Convention is that guerillas are accorded a different status from formal military personnel.

The section below is from the Geneva Convention and would seem to exclude al-Qaeda as they don't follow the rules of warfare anyway.

Does anyone think for a second that any of our military personnel will ever be accorded Geneva Convention treatment by al-Qaeda?

BTW, if it was up to my wife (a native New Yorker) these al-Qaeda goons would have already been slowly cut to shreds as a warning to others who might have considered joining the fight.

Guerrillas

Guerrillas who follow the rules spelled out in the Geneva Conventions are considered to have combatant status and have some of the same rights as regular members of the armed forces.

In international conflicts, guerrillas must distinguish themselves from the civilian population if they are preparing or engaged in an attack. At a minimum, guerrillas must carry their arms openly. (Protocol I, Art. 44, Sec. 3)

Under the earlier Geneva Conventions, which are more widely recognized, a guerrilla army must have a well-defined chain of command, be clearly distinguishable from the civilian population, carry arms openly and observe the laws of war. (Convention III, Art. 4, Sec. 2)

In the case of an internal conflict, combatants must show humane treatment to civilians and enemies who have been wounded or who have surrendered. Murder, hostage-taking and extrajudicial executions are all forbidden. (Convention I, Art. 3)

Fenrisulven said...

What about all that marching in rank and file stuff? Is it still the law of the battlefield? Cause those American bandits are savaging our ranks from the treelines...

Worse, their snipers actually TARGET our officers! The outrage!

Quadraginta said...

Fucking lawyers. How I wish the whole lot could be shipped to Anbar to walk a few night patrols. Would they open their mouths to offer up some clever legal logic in defense when the smiling dark fellas slid up behind them, to cut their throats and run away laughing?

I don't give a rat's ass about being "better" than my enemy. I just intend me to live and him to die.

miked0268 said...

OK, I'm just a dopey civilian with no legal knowledge, but - don't the Geneva Conventions ONLY apply to conflicts with other signitories? I thought that when originally promulgated, one of the key features of the Geneva Conventions was that they were supposed to provide an incentive to sign by promising good treatment of your country's POW's in a war. Doesn't insisting that the Conventions be applied to all enemy combatants, whether they are signitories or not, actually weaken them? What incentive does anyone have to sign on to the Geneva Conventions if their troops will benefit from them no matter what they do?

Freder Frederson said...

I'm calling bullsh1t on you Freder.

And I'm calling bullshit right back.

How is that not coercive or humiliating to captured EPW, in contravention of the letter of the Conventions?

These are not EPW, we have already established that. But as to the larger point. I will defer to DoD as to whether the specific techniques are permitted by the Conventions. My point was that the FM does provide just the kind of specific guidance the president is seeking.

Second, why are you opposed to Bush asking Congress to tell him precisely what they think is permissible?

I don't. And the president is simply lying (I am getting tired of using nice words to describe the president's lies) when he claims he is seeking clear guidelines. He just wants Congress to replace one vague standard found in the Conventions ("outrages on personal dignity") with a less rigourous but still vague standard (prohibiting only techniques that "shock the conscience).

Third, are you comfortable with trying AQ under the Uniform Code of Military Justice?

Yes I am. What you describe is a Court Martial. The JAG Corps came up with a special military tribunal plan that would have tried the captured detainees under the current UCMJ, but not with the same procedures and rights that a U.S. soldier charged with a crime is entitled to.

The UCMJ is a comprehensive document. It allows for the creation of military courts to try civilians in occupied areas and non U.S. personnel. It was created in part because of serious concerns about the kangaroo court aspects and the perceived human rights abuses in the trials of Japanese war crimes offenders after World War II. Unfortunately, when the president decided to set up his military tribunals, he used those tribunals as a model.

And I am most certain that if Congress tried to codify the FM as the standard for treatment detainees, the White House would object strenously.

Freder Frederson said...

OK, I'm just a dopey civilian with no legal knowledge, but - don't the Geneva Conventions ONLY apply to conflicts with other signitories?

The Supreme Court addressed this issue in Hamdan. Quit ignoring the decision. Regardless, even if the Geneva Conventions don't apply this country is bound by the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The title pretty much says it all.

But for a president that apparently doesn't even take note of the title of documents, I bet that particular treaty goes right over his head too.

Freder Frederson said...

American policy regarding torture, treatment of detainees and civilian casualties in war should be determined on the basis of America's national interests. It should not be subject to a poll of the Arab street or even the South American street or the South Asian street.

So is genocide justifiable if it serves "America's national interests".

Rex Saxi said...

To me, just the fact that torture is a subject of "debate" shows how far we have gone in the past five years.

I am ashamed of my fellow citizens who think it's OK.

danquixote said...

Bruce Hayden: I read your list but I'm still not convinced. I think I'll still choose due process over high top sneakers.