Comments on: Dershowitz on Torture

By: Jem

Jem — Wed, 31 Dec 1969 18:00:00 +0000

I guess I'm trying to figure out what would be new in Dershowitz's advocacy. The Laws of Armed conflict--at least as they were taught to me in my role as a target intelligence officer-- already (1) make clear that use of protected facilities by combattants are sufficient cause to remove their protected status, so long as proportionality is satisfied, and (2) make clear that those who engage in combat while out of uniform and other elements recognized by the terrorists are not entitled to the Conventions' protection. The third element seems to me a description of a problem that could be resolved by recognizing that those engaged in a conspiracy with terrorists (by providing support) could be detained as agents of the unlawful combattants.

By: Bob M

Bob M — Wed, 31 Dec 1969 18:00:00 +0000

The objective would be not so much that they would be new, but that they would be widely understood and accepted as appropriate under the circumstances. Following them now, in good conscience and with the best intentions, still gets you hammered by International Amnesty, NYT, Peter Jennings, Al Gore, etc. "You are violating the sacred Geneva conventions" even if technically you aren't!

By: James Joyner

James Joyner — Wed, 31 Dec 1969 18:00:00 +0000

Jem, I agree with Bob's take on this.

Right now, it's just considered horrible to use force against a village when you're necessarily going to kill lots of civilians when you have an unmarked target.

And everyone--including the "evil" Rumsfeld--seems to think that the Iraqi insurgents are entitled to EPW status, which is just crazy.

By: Jem

Jem — Wed, 31 Dec 1969 18:00:00 +0000

You are, of course, correct that it is perception vice reality that makes following the Conventions problematic. Still, I doubt getting a bunch of lawyers together to agree on what the Conventions already say is going to have any impact whatsoever on the information campaign that must be waged against the misconceptions of the media (and, therefore, the public). I just don't think its possible to get to consensus when the US is so much more powerful than any other state (and which essentially forces all potential military opponents--state or non-state--to insurgency as a tactic) and many of the other states (e.g., Russia, France & China) so brutal in their treatment of insurgents that they won't want any constraints on their conduct. The Arab states will want virtually all insurgents treated as lawful combatants and the "allies" I listed above will insist on having virtually none so designated. Wow, I sure sound like a pessimist! The American press will only sign onto what Dershowitz recommends when there is a Democrat in the White House (maybe) and the foreign press probably never will...the discussions Dershowitz is talking about will be panned as "backsliding on human rights". I suspect the only way to change the perception is to immediately and aggressively get correct information out--in the local language(s), as well as in English. Naturally, we'll take some lumps, but at least we'll have a chance to influence the discussion before our enemies can firmly define the terms. It won't matter in coverage by al-Arabiya, al-Jazeera, Le Monde, The Guardian, and similarly biased sources, but we might have a chance of more neutral treatment by those with less bias.

By: Rusty Shackleford

Rusty Shackleford — Wed, 31 Dec 1969 18:00:00 +0000

James,
Apologies for double-trackback. Haloscan has something funky going on.

By: J_Crater

J_Crater — Wed, 31 Dec 1969 18:00:00 +0000

I wonder if George W. Bush or John Kerry thinks the Geneva Conventions need to be rewritten/rethought/updated to include different handling of terrorist who operate outside the perview of the ordinary laws of war or civility.
I have seen that the White House Counsel called the conventions "quaint," but what does that mean ? Does John Kerry feel the same.
Will they do anything ?
I need to know. We need to know. Our lives may depend on it.

By: allen hemphill

allen hemphill — Wed, 31 Dec 1969 18:00:00 +0000

The Geneva Convention is a vacuous document that has failed to protect American captives in Korea, Vietnam OR the Middle East from torture. It is a document designed for warfare between France and Britain or Denmark and Sweden. I handled the personal affairs of Commander "Pete" Bucher for the year he and his crew of the Pueblo were in North Korean prison -- and I recently assisted his widow at his funeral. Please explain what the Geneva Convention did for the Pueblo crew?

By: Daily Pundit

Daily Pundit — Wed, 31 Dec 1969 18:00:00 +0000

Degres of Abuse? What A Novel Concept....
James Joyner has Dershowitz on torture. Fascinating!...

By: The Southern California Law Blog

The Southern California Law Blog — Wed, 31 Dec 1969 18:00:00 +0000

Six Pix from SoCal
Six sites that drew my attention today: Legal Reader has posted a farewell email from a burnt-out attorney leaving a big firm. I, too, received this email but could not corroborate the name of its author with State Bar records...

By: Allah Aint In The House

Allah Aint In The House — Wed, 31 Dec 1969 18:00:00 +0000

Does Dershowitz Sanction Killing al Jazeera Report
James makes a minor point, though, in his post which I feel needs some commentary...Of course he's right. However, it seems to me that there is a significant portion of the population that believes that what is legal is that which is right.

By: My Pet Jawa

My Pet Jawa — Wed, 31 Dec 1969 18:00:00 +0000

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