Brad DeLong's Semi-Daily Journal (2004)

So will the right's strucutre give him the Ollie North treatment in 6 months? Nice salary, radio/TV show, chance to run for Senate...

Kind of disturbing that Rumsfeld is so determined that Guantanamo not be subject to the Geneva convention given how much it seems to have restricted operations in Abu Ghraib no ?

I think it is time to start linking the torture in Iraq to the attempt to put the administration beyond the rule of law, suspending habeas corpus in direct contradition of the constitution etc.

Ashcroft should be facing criminal charges for kidnapping. Bush should be facing a war crimes tribunal (along with his chum Sharon).

Have to go back and hear this exchange as it looks like classic Rumsfeld dancing around the questions. Even in this brief excerpt - he seems to be wordplaying as to whether the Geneva Conventions were to be strictly applied or not.

It was Rumsfeld, was it not, who determined that the US was not going to abide by any rules, the Geneva Convention notwithstanding, during its war on terror, except those made up by the Bush administration. That means the lawless conditions that were created, and the atrocities they spawned, were of the Bush administration's making, specifically Rumsfeld, unless he was only following orders, in which case Bush, not Rumsfeld, should take the fall.

Shorter Rumsfeld: I haven't read the report, I haven't ascertained what the chain of command is, and I haven't asked about what the orders were. What else would you like to know?

There seems to be confusion about the difference between a POW and a detainee. Having the status of a POW is a privilege not a right. A captured soldier gets the privileged POW status if he and his army have conformed to section 4 of the 1949 Geneva Convention. Otherwise he is a detainee-- with fewer rights. A POW cannot be put on trial for the ordinary acts of war, but a detainee can. The POW gets other important privileges as well as regards to living conditions, interrogations etc. There is a good and substantive reason for not granting every captured combatant POW status: The protection of innocent civilians. Section 4 of the 1949 Geneva Convention was crafted with the protection of civilians in mind. The section 4 framers did not want combatants blending into the civilian population as a kind of cover. And as an incentive not to do this they are offered the privileges of POW status. In many instances the US grants POW status to everyone one captured anyway. I don’t think this is a wise policy because it subverts the intent of section 4. Nevertheless they do it, and according to Rumsfeld’s testimony, this is the policy for Iraq. With POW status the Iraqi prisoners are shielded from all but perfunctory interrogation, and they are certainly shielded from abuse bordering on torture. Even non-POW detainees cannot be tortured under (non-section 4) international and US laws. Normally one would not hold Secretary of Defense to a kind of strict standard of liability in the sense that he would be held responsible acts of abuse and torture by small numbers of soldiers. But we have the Red Cross report that seems to indicate that these practices are widespread. If this is the case, then Rumsfeld (and Bush) have a real problem. He is at least negligent in discharging his duties as Secretary of Defense.

Note that a POW or a detainee as nonresident aliens are not within the jurisdiction of American civilian courts. This is settled case law by the US Supreme Court with Johnson v. Eisentrager 339 US 763 (1950). “A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777.” A POW has no right of habeas corpus (which is defined by statute not the constitution). This does not mean that the executive branch is unchecked. Congress could rewrite the habeas corpus statute to include non-resident aliens. Congress could end the declared war. Congress could defund the war. There are lots of things Congress could do to rein in the executive with respect to foreign detainees. And BTW we are at war. Nowhere in the constitution does it require Congress to say magic words like “We hereby declare war on X.”

With few exceptions, the senators put their personal response to the photo's evidence ( their horror/apology/condemnation-of-the-few) ahead of their questions to Secretary Rumsfeld.
As serious as this gathering is/was, it was run by the clock. And so not all the questions were answered and few questions were followed up by other senators who also felt the need to exhibit their patriotism first.
This is more a serious face than a serious gathering ,no? Isn't it a tad Pythonesque, the 'times up' bit?
If I had to operate under the bell and could rerun it, I'd pick McCain and Clinton and let the other senators rush off to their (important) appointments.

This should be a truism, but it isn't. Instituting a category of wartime prisoner not covered either by the Geneva convention, international law, or American law, making it realtively easy to put individuals into this category (without evidence or recourse), and then allowing the declaration of an endless war against a poorly-specified enemy (so that victory can never be declared) -- amounts to tearing up the Bill of Rights, the Declaration of the Indepedence, and much of the Constitution. These are exactly the kinds of things the founding father were trying to avoid. At the very front of the list.

How many Americans realize this? No more than 10%, by my guess. Even among well-informed, aware Americans, I doubt it's more than 30-40%.

I hardly even bother to argue this, people are so hysterical, but Islamic fundamentalism is NOT an enemy on a par with the succession of Hitler and Stalin. And 9/11 was a serious blow, but it's not uniquely horrible; dozens of countries have suffered as badly or worse. For example, El Salvador 1979--198?.

I have this ugly image that the neo-cons imagine themselves as Jack Nicholson in A Few Good Men. They long to do the dirty work of torture to defend America, and they envy the Israelis and the Apartheid government of South Africa, because there hairy-chested, strong-jawed men who love their countries prove it with force. I know how many times I have heard people say that what we need is the ability to go underground and grab terrorists off the street and beat information out of them, and scare them into submission.

A. Zarkov points out the few legal restrictions they face. I generally think that resort to the specific language of criminal statutes is a feeble defense when the issue is public responsibility. That is especially true for the abuse of Iraqi prisoners. That is not solely about the law. Just because our president and his secretary of defense can operate without rules does not mean they should. The sanctions of law are not the only sanctions. We had all better hope that we do not have to rely on law to protect us from this administration.

We keep POWs in custody to deny their services to whatever enemy entity they serve, not as a punishment. POWs are not criminals, and they are released when hostilities cease. As any war could last a very long time, prolonged custody is always a possibility. What else are we supposed to do? Of course there is always the possibility that someone in custody is actually not part of the enemy forces, but this question has never been one for civilian courts. Why would we want to transfer this decision from the military to civilian courts in a time of war? The civilian court system is not designed to handle such a matter. Should every one of the German and Japanese POWs in WWII have had the right to have a US civilian court decide their status as an enemy combatant? A country could never run a war this way.

Congress didn't authorize a war with Iraq. They authorized a war on "terra". We entered Iraq to eject Saddam Hussein, that confederate of Osama, as is clear from the resolution passedby Congress. The architects of the adventure expected to be greeted by flowers. Instead we face various resistance movements. Consequently, the role of the detainees at Abu Ghraib bears little resemblance to the POWs in WWII.

Zarcov, what you say may be true historically (9:30 post), but when the Bush people talk about what is essentially an endless war against a nebulous blob, keeping prisoners "for the duration" is a completely different thing. Especially because Geneva Convention rules were waived from the beginning. (The Bush pattern seems to be to cherrypick whichever collection of legal instruments provides the fewest rights to the detainees).

I have no idea what the precedents are, but we seem to be in danger of becoming one of the bad guys of history.

"I have no idea what the precedents are, but we seem to be in danger of becoming one of the bad guys of history."

I think that train has sailed, you might say.

"I have no idea what the precedents are, but we seem to be in danger of becoming one of the bad guys of history."

I think that train has sailed, you might say.

"I have no idea what the precedents are, but we seem to be in danger of becoming one of the bad guys of history."

I think that train has sailed, you might say.

Sorry for the triple burp there.

Ugly speculation: could Pappas (or someone else)agree to become the fall guy, and not point to guilty highers-up, if he's quietly assured that Bush will pardon him just before leaving office?

A. Zarkov, I've been reading the Geneva convention & protocols for the first time recently and am still ignorant of the answer to this question - maybe you can clarify:

If you can only get POW status by being in a properly organized army, thus ruling out guerrillas... then what protects prisoners who are not even combatants in any way, shape or form? Supposing for the sake of argument that it's possible to know this for sure - what specifically in international law would prevent a totally unopposed occupying army from arresting the entire civilian population and doing whatever the hell it wants to them?

Eli: Your statement “If you can only get POW status by being in a properly organized army, thus ruling out guerrillas...” is not correct, as I understand the terms of the 1949 Geneva Convention. Being a member the army is a sufficient condition to qualify as a POW because of the language of Article 4, which reads in pertinent part:

“(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.”

So those Americans who went to fight for the Republic of Spain, the so-called “Abraham Lincoln Battalion” would qualify as POWs if captured because they were essentially a “volunteer corps.”

On the other hand a members of an irregular militias (guerrillas) must satisfy additional conditions as we can see from the language of article 4 (2):

(2) Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a Party to the conflict and operating in or
outside their own territory, even if this territory is occupied, provided that such militias or
volunteer corps, including such organized resistance movements, fulfill the following conditions:”

So a member of the Taliban or the Iraqi army would be covered under (1), but being a member of Al-Qaeda would not because Al-Qaeda is covered under (2). Since they not conform to any of the four conditions that follow article 4 (2) they are not POWs.

See original text at http://www.unog.ch/frames/disarm/distreat/geneva3.pdf for details.

Article 4 (3)-(6) provides other criteria to qualify as a POW.

As to the second part of your question, non-combatants can never be taken into custody, as that would be tantamount to taking hostages. You can’t even do that in the case of an internal conflict. Note that Article 3 (1) “Persons taking no active part in the hostilities”
are prohibited from being held hostage, part (b) of Section 3 (1).

Note finally that some would take issue with the Taliban army being covered under Article 4 (1) because almost no nation (including the UN) recognized the Taliban government. They would argue that the Taliban army is an irregular militia and thus belongs under Article 4 (2), not Article 4 (1). There is much debate over this point, and for this reason the US did declare Taliban captives as POWs.

thanks to Zarkov for the information. Here is a short introduction from Human Rights Watch. It says that every detainee has to have some kind of status under international law. In cases of doubt, detainees are to be considered covered by third convention (they are POWs) until determination can be made. I remember there was a controversy about this when Gitmo opened.

http://www.hrw.org/backgrounder/usa/pow-bck.htm

3. Status Determination of Prisoners
Article 5 of the Third Geneva Convention states: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy," belong to any of the categories for POWs, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

No detainee can be without a legal status under the Conventions. According to the ICRC Commentary:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law.1

here is the index to the ICRC commentary -very long but understandable, with hyperlinks to the text:
http://www.icrc.org/ihl.nsf/WebCOMART?OpenView

This seems necessary: The level of bureaucratic indulgence regarding the classification and ordinances governing the practices relating to those classified, parallels that level of wanton behavior by the less (civilized --cultured? empowered? privileged?). We have the scribes armed with their pens on one side and the enscribed (citizens? soldiers? animals?) butchering away on the other.

This seems insufficient: This behaviour is unacceptable -cease and desist.

"There is no intermediate status; nobody in enemy hands can fall outside the law."

Unless they fall into the hands of the Bush administration.

“No detainee can be without a legal status under the Conventions. According to the ICRC Commentary”

I’m not sure how ICRC commentary arrives at this conclusion, or what it actually means. In the case of Afghanistan, I don’t see how the Convention applies, particularly to Al-Qaeda. Here is why.

The Taliban (assuming it had the status a government) was not a party to the Geneva Convention. Convention III article 2 addresses this case, and says in pertinent part:

“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

This provision (as I read it) says that a country is not expected to abide by Geneva III if its adversary does not accept and apply the provisions of the Convention. This makes sense; both parties must conform. A country that refuses to grant the privileges of POW status to the solders it captures should not expect its own solders to get any more.

Moreover Geneva IV article 4 says:

“Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

Members Al-Qaeda fighting against the US in Afghanistan are without doubt co-belligerents with the Taliban. They are not protected by the provisions of the Geneva Convention.

I don't have time to wade through all the material right now, but I do agree that the Geneva Conventions don't say that everyone has the rights of a POW. I think that the the statement I quoted “No detainee can be without a legal status under the Conventions. According to the ICRC Commentary” means some sort of status must be assigned to everyone, not necessarily that of a POW. I do remember from the class I took on the Geneva Conventions, that even in cases where one party is not a signee (as in a civil war, or an insurgency) the ICRC will attempt to make inspections whenever a stable organization is controlling territory or forces, but I forget which section of which convention covers this.

Then there is also the issue of what international humanitarian law says about this, which is different from the Geneva conventions, but which also guarantee minimum standards of treatment.

It does seem to me that whatever the questions exist regarding detainees from Aghganistan, they are different from Iraq, where the US is the occupying power -so the Hague convention or treaty also has something to say.

We need to find an internation humanitarian law lawyer. Don't any of those people read this blog?

War is an ugly thing, but not the
ugliest of things. The decayed and degraded state of
moral and patriotic feelings, which thinks that
nothing is worth war, is much worse. The person who
has nothing for which he is willing to fight, nothing,
which is more important than his own personal safety,
is a miserable creature and has no chance of being
free unless made and kept so by the exertions of
better men than him.