Hilzoy pronounces herself “happy as a clam” with President Obama’s speech yesterday on national security issues, with one glaring exception:

But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.

This was followed by a long list of caveats about “fair procedures,” “the rule of law,” and “checks and balances.” While applauding the caveats, Hilzoy nonetheless retorts:

Preventive detention????????

No. Wrong answer

If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place. [all emphases original]

Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement.  But we’re not.  These are people captured on the fields of battle of Afghanistan and Iraq.

Obama is quite right here:  “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.”  It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.

To be sure, the present conflict introduces a new murkiness.  We are not at war with a nation-state, so there is no one with whom to negotiate a definitive surrender or peace treaty.  Further, most of the combatants in detention are not privileged belligerents under the Geneva Conventions and other laws of war in that they wore no distinguishing uniforms or insignia, fought for no state, and were not part of a traditional resistance movement.   Many if not most are war criminals who hid amongst noncombatant civilians and/or used the cover of mosques, hospitals, and other protected sanctuaries as shields.

The problem with Guantanimo is not that we’re holding enemy combatants indefinitely but rather that we’ve flouted some of the rules of the Geneva Conventions, most notably in not establishing some minimal due process to allow people to present evidence that they’re not who we claim they are.   Additionally, we used “enhanced interrogation techniques” on a handful of captives that were quite probably torture and quite certainly a violation of the laws of war.  Obama, to his credit, has renounced all of these practices.

UPDATE: It’s worth noting, as Blake Hounshel and Chris Brose do, that they’d long since been abandoned by the Bush Administration, too.  Brose:

I don’t fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney’s current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush’s stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney’s argument is with Bush as much as it is with Obama.

Quite right.   For all the talk of Cheney as the power behind the throne, he was increasingly an outlier in the administration whose counsel was taken but largely not followed.

Update (Alex Knapp): I am more inclined to agree with Kevin Drum than with Hilary Bok on this issue:

I appreciate the outrage, but this is a genuinely knotty problem. It was knotty under Bush and it remains knotty under Obama. For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.

At the same time, they aren’t American citizens. They were captured on a foreign battlefield, not U.S. soil. They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?

One thing that I think we should not do is let the government say “trust us” on this. If there is evidence against particular detainees, then provide it. Then we can debate the legal channels. If the law needs to be changed, Obama can go to Congress. If it’s possible to extradite some of them because they have outstanding warrants in other nations, let’s look into that. I agree that this is a hard problem, and I also agree that the simple release of some terrorists puts Americans in danger, and that risk needs to be appreciated.

That said, there needs to be some kind of open, transparent process through which claims against such detainees can be evaluated and pains can be made to ensure that detainees that their detention continued are actually dangerous. We shouldn’t just take the President’s word on it. Not any President.

Update (James Joyner): I was about to append an update linking to Kevin’s post on this but noticed Alex already had.  I agree entirely with both of them on this matter.

The Department of Defense has reviewed itself and found that it’s doing nothing wrong.

Pam Hess for AP:

The report found the camp to be in compliance with the Geneva Conventions Common Article 3, the international rules that require the humane treatment of prisoners taken in unconventional armed conflicts, like the war on terrorism. The camp’s controversial force-feeding of prisoners on hunger strikes was also found to be compliant with the Geneva guidelines, a second government official confirmed.

William Glaberson for NYT:

The review, requested by Mr. Obama on his second day in office, is to be delivered to the White House next week. The president’s request, made as part of a plan to close the prison within a year, was widely seen as an effort to defuse accusations that there were widespread abuses at Guantánamo, and that many detainees were suffering severe psychological effects after years of isolation.

Peter Finn and Del Quentin Wilber for WaPo:

Defense attorneys for the detainees have complained bitterly about the isolation of some prisoners. They allege that over several years, it has led to mental problems for some detainees. The lawyers also have criticized the force-feeding of prisoners on hunger strike. About 40 prisoners are now on hunger strike, according to Pentagon officials.

[Adm. Patrick M. Walsh, the vice chief of naval operations] concluded that force-feeding, which involves strapping detainees to special chairs and inserting a tube through one nostril and into their stomachs, is in compliance with the Geneva Conventions’ mandate that the lives of prisoners be preserved, according to the government official, who spoke on the condition of anonymity because he was not authorized to discuss the report publicly.  Walsh also found that prisoners should be allowed more communal recreation and prayer time. Prisoners in Camp 6 and the highly secret Camp 7 — which holds such high-value detainees as Khalid Sheik Mohammed, the self-proclaimed organizer of the Sept. 11, 2001, attacks — can be held in windowless cells for up to 22 hours a day. Walsh said the most isolated prisoners, including those in Camp 7, should be allowed to pray and have recess together in rotating groups of at least three for more extended periods of time.

Shockingly, everyone’s not buying it:

Civil liberties groups, including the Center for Constitutional Rights, which is about to issue a report on conditions at the prison, challenged Walsh’s findings.

“We do think conditions are in violation of U.S. obligations to treat prisoners humanely, and prisoners are at a physical and mental breaking point,” said Pardiss Kebriaei, a staff lawyer at the center. “These are not the conclusions we had hoped for under Obama. It’s very disappointing.”

Attorneys representing detainees singled out force-feeding as particularly abusive.

So, people whose job it is to have grievances are aggrieved whereas those investigating themselves are satisfied?  No wonder this didn’t make the front page.

The daring rescue of Ingrid Betancourt from FARC terrorists misused the Red Cross symbol in violation of the Geneva Conventions.

A member of the military mission that tricked Colombian rebels into freeing 15 hostages wore the insignia of the International Red Cross during the operation, President Alvaro Uribe said Wednesday.

Mr. Uribe said his government had apologized to the Red Cross for the incident, which he called an unauthorized error by a nervous soldier. “An officer mistakenly and contrary to orders … put a piece of cloth on his vest that carried the symbol of the International Committee of the Red Cross,” Mr. Uribe said in a speech in Bogota.

A fleeting image of a portion of the cloth is visible in video taken of the operation by an agent posing as a cameraman that was officially released.

Use of the Red Cross symbol in such a military operation would appear to violate the Geneva Conventions that protect the relief organization’s reputation for neutrality in conflicts.

There’s no “appear” to it.

One hesitates to overstate matters given the stakes involved.  The rescue of these hostages is an unmitigated good.   Further, I believe Uribe when he says it was done contrary to orders.

Still, this is a serious matter.   Having soldiers pose as relief workers or journalists is illegal because, otherwise, no one would recognize the sanctity of those people and they would be in danger.  Using the Red Cross is particularly egregious because it could deny captured soldiers and their families the benefits of visits to ensure humane treatment.

Recall Clara Barton’s words from 1878:

A confederation of Relief Societies in different countries, acting under the Geneva Convention, carries on its work under the sign of the Red Cross. The aim of these societies is to ameliorate the condition of wounded soldiers in the armies in campaign on land or sea, and to furnish relief in cases of great national calamity.

The societies had their rise in the conviction of certain philanthropic men, that the official sanitary service in wars is usually insufficient, and that the charity of the people, which at such times exhibits itself munificently, should be organized for the best possible utilization. An International Public Conference was called at Geneva, Switzerland, in 1863, which, though it had not an official character, brought together representatives from a number of governments. At this conference a treaty was drawn up, afterwards remodeled and improved, which twenty-five governments have signed.

The treaty provides for the neutrality of all sanitary supplies, ambulances, surgeons, nurses, attendants, and the sick or wounded men, and their safe conduct, when they bear the sign of the organization, viz: the Red Cross.

This only works if people trust that only legitimate relief workers seek sanctuary behind the Red Cross symbol.

Woodrow Wilson Red Cross Poster:  Sparacus Education:  Red Cross

Physicians for Human Rights has just published a report detailing the medical evidence of detainee torture at the hands of U.S. Personnel in Iraq, Afghanist, and Guantanamo Bay.

Maj. General Antonio Taguba (Ret.) authored the preface to the report, in which he accuses the Administration of having committed war crimes:

The profiles of these eleven former detainees, none of whom were ever charged with a crime or told why they were detained, are tragic and brutal rebuttals to those who claim that torture is ever justified. Through the experiences of these men in Iraq, Afghanistan, and Guantanamo Bay, we can see the full scope of the damage this illegal and unsound policy has inflicted—both on America’s institutions and our nation’s founding values, which the military, intelligence services, and our justice system are duty-bound to defend.

In order for these individuals to suffer the wanton cruelty to which they were subjected, a government policy was promulgated to the field whereby the Geneva Conventions and the Uniform Code of Military Justice were disregarded. The UN Convention Against Torture was indiscriminately ignored. And the healing professions, including physicians and psychologists, became complicit in the willful infliction of harm against those the Hippocratic Oath demands they protect.

After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

The answer to that question? No. They won’t be.

(link via Radley Balko)

Foreign Affairs has, over the last several issues, had one major Republican and one major Democrat publish an essay under their name outlining the foreign policy agenda they would pursue if elected president. Bill Richardson was either tired of waiting or figured he wouldn’t be asked, so instead published his in the latest issue of The National Interest.

Stripping out (most of) the platitudes, here are the highlights of “A New Realism for a New Century: Presidential Candidate Bill Richardson Outlines His Foreign Policy Agenda.” (It’s completely UFO-free, by the way.)

The problems of the 21st century are not the problems of a nation: they are the problems of an interdependent global society.

Well, the problems are action the problems of several nations. For whomever is elected president, though, this nation is the one that matters. What Richardson should instead say is that the solutions are not in the hands of a single nation but rather require the cooperation of many nations.

The world’s only superpower must lead that global society if we are to respond effectively to common challenges. We must reject the fantasies of those who advocate retreat from global engagement, just as we must reject the delusion of those who claim we can transform other countries through the unilateral application of American military power. We also must go beyond the balance-of-power realism of the last century and embrace a New Realism that understands that to exercise power effectively in the 21st century we must rise to a new level of global leadership.

Okay, this is pure platitude. Basically, he wants to be incredibly engaged while simultaneously rejecting unilateralism while keeping the option of unilateralism open.

[E]nd the Iraq war, rapidly and responsibly. Every day we remain mired in Iraq, we tie our own hands, and others are reminded of the dishonesty and incompetence that got us there. We need to recognize that there is no military solution to Iraq’s political impasse, and that only our military withdrawal can break the stalemate and open up new political possibilities. We need to bring our troops out as we launch a diplomatic surge—a new political strategy that engages all the Iraqi factions and all the nations of the region, as well as the international donor community.

Transforming American imperialism, we might call it.

We must repair our alliances. We must restore respect for our allies, and for the democratic values that unite us. The next president needs to make it clear, through words and deeds, that we value our alliances and are committed to strengthening them. We should always prefer multilateral efforts that unite us and share burdens, but if we choose to act alone, we should not accuse our allies of disloyalty or cowardice.

Shorter Bill Richardson: We should continue the Bush Administration’s foreign policy but hire new speechwriters.

We must engage our adversaries diplomatically. The Bush Administration’s refusal to engage obnoxious regimes has only encouraged and strengthened their most paranoid and hard-line tendencies: Iran and North Korea responded to Washington’s snubs and threats with intensification of their nuclear programs. We need to talk tough to such regimes, but to do so, we need to talk.

Well, we’re talking now, just behind the scenes rather than publicly. But, yes.

With Russia, our first priorities should be securing loose nukes and putting pressure on Iran to halt nuclear enrichment. With China, our priorities should be North Korea, Darfur and trade.<

Aren’t those our priorities now? Except maybe Darfur?

[E]xpanding the Security Council to include Japan, Germany, India, a country from Latin America and a country from Africa as permanent members.

Umm, which countries from Latin America and Africa? They’re not interchangeable. And how does adding five permanent members make the UNSC more relevant? It’s already virtually useless as an action body because of the unanimity requirement.

[I]ncreasing aid to poor countries and working with other donors to make sure they meet their Millennium aid commitments. It means more Third World debt relief, and trade agreements that create jobs in all countries, and that seriously address worker rights and the environment. It means an IMF more flexible on social safety nets.

Are we going to create more jobs or address worker rights and the environment? Those are conflicting goals, after all.

We must respect both the spirit and the letter of the Geneva conventions and we must join the International Criminal Court, and support it enthusiastically, so that those who would violate human rights know that they will be held accountable.

“Enthusiastically” is a bit much, I’m afraid. Indeed, I can’t imagine the ICC getting 67 votes in the Senate.

We must lead international efforts to eradicate slavery, and we must lead on genocide, especially in Africa, where the two most recent genocides have taken place, in Rwanda and now in Darfur. History teaches us that if the United States does not take the lead on genocide, no one else will.

Right. But what does “taking the lead” mean, exactly?

The United States must lead global efforts to reduce greenhouse gas emissions. This means joining the Kyoto protocol and then going well beyond it, with a man-on-the-moon effort to improve efficiency and to commercialize clean, alternative technologies. We must cut our fossil fuel consumption dramatically and rapidly, and get others, including China and India, to follow us to a sustainable energy future.

The domestic side of this could well happen with strong leadership. India and China aren’t ready to turn that corner just yet, though.

We must increase funding for the Nunn-Lugar program, and we need better human and international intelligence and law enforcement coordination to prevent nuclear trafficking. We must do the hard diplomatic work to unite the world, including Russia and China, to stop the nuclear ambitions of Iran and North Korea, as we provide these nations with incentives to renounce nuclear weapons.

The incentives in the other direction are mighty powerful, I’m afraid. But, yes, worth trying.

We must work with all moderate Muslims worldwide to present the Muslim world with a better vision than the apocalyptic fantasy of the jihadists. Undoing the damage to our image caused by Bush Administration policies will require a major new public diplomacy effort. But for this to be credible, we also need to change the policies: We need to live up to our own ideals. Prisoner abuse, torture, secret prisons, renditions and evasion of the Geneva conventions must have no place. If we want Muslims to open to us, we should start by closing Guantánamo.

I’d point out that we weren’t doing any of those things before 9/11 and were still attacked. Ipso facto, then, this won’t solve the problem. It’s worth doing for its own sake, though, so why not.

And we must re-engage the Middle East peace process, so that we can deprive the jihadists of their most effective propaganda tool. We must use all our sticks and carrots to strengthen Palestinian moderates and to promote a two-state solution that guarantees Israel’s security.

This has been our policy for quite some time. Remember, though, al Qaeda was attacking us during the most active days of the Clinton Administration’s engagement in Oslo and other initiatives in this direction.

We must recruit, equip and train more first responders, and we must drastically improve the surge capacity of our public health facilities, which six years after 9/11 are not ready for a biological attack. We need to allocate Homeland Security dollars to where they are needed—to the population centers and facilities that we know Al-Qaeda targets.

Almost certainly a monumental waste of resources.

The United States also needs to start paying attention to the Americas.

When, precisely, did we stop?

We need better border security and comprehensive immigration reform. To reduce both illegal immigration and anti-American populism in Latin America, we must work with reform-minded governments to alleviate poverty, promote equitable development and strengthen energy cooperation.

Does this involve a magic wand of some sort?

We should encourage expanded use of generic drugs, and we should stimulate public-private partnerships to enhance access to HIV anti-viral and anti-malarial drugs, as well as low-tech but effective methods like bed nets.

We need the United States government to hand out mesh in the 3rd World?

America should spearhead a multilateral Marshall Plan to promote development in Afghanistan, the Middle East and Africa. For a small fraction of the cost of the Iraq War, which has made us so many enemies, we could make many friends. A crucial effort in fighting terrorism must be support for public education in the Muslim world, which is the best way to mitigate the role of those madrasas that foment extremism. Development alleviates the injustice and lack of opportunity that proponents of violence and terrorism exploit.

While replacing military imperialism with economic imperialism might be well-intentioned, it’s highly unlikely to have the positive impact Richardson imagines.

Ultimately, Richardson’s “New Realism” has much in common with Bush’s “Neo-Conservatism.” Most notably, both use variants of “new” to negate the noun they modify. Whatever one might think of Richardson’s proposals, one thing is for sure: They ain’t Realist.

Today’s WaPo fronts the story of the most interrogators of WWII, who had a reunion yesterday at Fort Hunt. Not surprisingly, perhaps, the focus is on those who spoke out about the war in Iraq and the interrogation techniques now being used.

For six decades, they held their silence. The group of World War II veterans kept a military code and the decorum of their generation, telling virtually no one of their top-secret work interrogating Nazi prisoners of war at Fort Hunt.

When about two dozen veterans got together yesterday for the first time since the 1940s, many of the proud men lamented the chasm between the way they conducted interrogations during the war and the harsh measures used today in questioning terrorism suspects.

Back then, they and their commanders wrestled with the morality of bugging prisoners’ cells with listening devices. They felt bad about censoring letters. They took prisoners out for steak dinners to soften them up. They played games with them. “We got more information out of a German general with a game of chess or Ping-Pong than they do today, with their torture,” said Henry Kolm, 90, an MIT physicist who had been assigned to play chess in Germany with Hitler’s deputy, Rudolf Hess.

Blunt criticism of modern enemy interrogations was a common refrain at the ceremonies held beside the Potomac River near Alexandria. Across the river, President Bush defended his administration’s methods of detaining and questioning terrorism suspects during an Oval Office appearance.

Several of the veterans, all men in their 80s and 90s, denounced the controversial techniques. And when the time came for them to accept honors from the Army’s Freedom Team Salute, one veteran refused, citing his opposition to the war in Iraq and procedures that have been used at Guantanamo Bay in Cuba. “I feel like the military is using us to say, ‘We did spooky stuff then, so it’s okay to do it now,’ ” said Arno Mayer, 81, a professor of European history at Princeton University.

When Peter Weiss, 82, went up to receive his award, he commandeered the microphone and gave his piece. “I am deeply honored to be here, but I want to make it clear that my presence here is not in support of the current war,” said Weiss, chairman of the Lawyers’ Committee on Nuclear Policy and a human rights and trademark lawyer in New York City.

The veterans of P.O. Box 1142, a top-secret installation in Fairfax County that went only by its postal code name, were brought back to Fort Hunt by park rangers who are piecing together a portrait of what happened there during the war.

Nearly 4,000 prisoners of war, most of them German scientists and submariners, were brought in for questioning for days, even weeks, before their presence was reported to the Red Cross, a process that did not comply with the Geneva Conventions. Many of the interrogators were refugees from the Third Reich.

“We did it with a certain amount of respect and justice,” said John Gunther Dean, 81, who became a career Foreign Service officer and ambassador to Denmark.

The interrogators had standards that remain a source of pride and honor. “During the many interrogations, I never laid hands on anyone,” said George Frenkel, 87, of Kensington. “We extracted information in a battle of the wits. I’m proud to say I never compromised my humanity.”

The degree to which the men quoted here are representative of the group is unknowable from the piece, of course. Reporters will naturally focus on controversy and the vets supportive of current policy are much less interesting. Still, this isn’t the first time we’ve seen these sorts of criticisms from professional interrogators.

Stephen Budiansky had a superb piece in the Atlantic Monthly a couple of years ago (exerpted at OTB at the time) noting that the most successful interrogators on both sides in WWII used psychology rather than torture to get information.

The brutality of the fighting in the Pacific and the suicidal fanaticism of the Japanese had created a general assumption that only the sternest measures would get Japanese prisoners to divulge anything. Moran countered that in his and others’ experience, strong-arm tactics simply did not work. Stripping a prisoner of his dignity, treating him as a still-dangerous threat, forcing him to stand at attention and flanking him with guards throughout his interrogation—in other words, emphasizing that “we are his to-be-respected and august enemies and conquerors”—invariably backfired. It made the prisoner “so conscious of his present position and that he was a captured soldier vs. enemy intelligence” that it “played right into [the] hands” of those who were determined not to give away anything of military importance.

[...]

Every soldier, Moran observed, has a “story” he desperately wants to tell. The interrogator’s job is to provide the atmosphere that allows the prisoner to tell it.

[...]

Moran spoke fluent Japanese, but more important, he was thoroughly familiar with Japanese culture, having spent forty years in Japan as a missionary. He used this knowledge for one of his standard gambits: making a prisoner homesick. “This line has infinite possibilities,” he explained. “If you know anything about Japanese history, art, politics, athletics, famous places, department stores, eating places, etc. etc. a conversation may be relatively interminable.” Moran emphasized that a detailed knowledge of technical military terms and the like was less important than a command of idiomatic phrases and cultural references that allow the interviewer to achieve “the first and most important victory”—getting “into the mind and into the heart” of the prisoner and achieving an “intellectual and spiritual” rapport with him.

I share Phil Carter’s hope that we can learn from the experiences of the men of Fort Hunt and others who went before.

I think that sometimes, we forget how bad these guys had it. We think that we’re the first ones in American history to face an existential threat; that the world really changed and became more dangerous on 9/11/01, and that we’ve never been here before. But, in fact, we have been here before. Our nation has faced existential threats in its short history, like the Civil War and WWII, and we’ve prevailed. History offers many lessons for today about how we might view these threats, and respond in a way consistent with our nation’s core values.

Yes, jihadist terrorists are different in important ways than the soldiers of Germany and Japan. But human nature remains constant.

The Senate has narrowly failed to pass habeas corpus protection for terrorist suspects:

The Senate narrowly rejected legislation on Wednesday that would have given military detainees the right to protest their detention in federal court. The 56-43 vote against the bill, by Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., fell four votes shy of the 60 needed to cut off debate. It was a blow for human rights groups that say a current ban on habeas corpus petitions could lead to the indefinite detention of individuals wrongfully suspected of terrorism.

Steve Benen is frustrated:

First, every Democrat in the Senate supported restoring habeas, including conservative Dems from red states who are up for re-election. There is a patriotic party that’s still willing to stand up for American principles; it’s called the Democratic Party. Second, six Senate Republicans had the decency to break party ranks on the issue: Sens. Snowe (Maine), Sununu (N.H.), Specter (Pa.), Hagel (Neb.), Lugar (Ind.), and Smith (Ore.). And third, Joe Lieberman supported the Republican filibuster and voted with the GOP. What a disgrace.

Keep in mind, this was just the vote to allow a vote. It’s one thing for conservatives to oppose habeas corpus, but these guys wouldn’t even allow an up-or-down vote on a basic principle of Western Civilization. Indeed, it’s horrifying to think that supporting habeas is suddenly “old school” — as in Magna Carta in 1215 old school. But that’s where we’ve come, thanks to the radicalization of today’s Republican Party.

We’re in agreement that holding people who are neither prisoners of war nor criminals in prison indefinitely without at least some minimal measure of due process is bad policy. But can we dispense with the reverse-Coulter rhetoric?

Using parliamentary tactics to forestall a floor vote in the Senate on something that a majority would otherwise support is hardly something invented by the current Republican minority. More importantly, the large plurality who opposed this measure are neither unpatriotic nor radical; they merely differ on how far we should go in the name of protecting Americans from the very real threat of Islamist terrorism.

Those being held at Gitmo and elsewhere are not American citizens and therefore not entitled to the full protection of the Constitution. Nor are they soldiers, subject to the protocols of the Geneva Conventions. They’re accused terrorists caught as unprivileged belligerents in a conflict where Americans are being killed.

My sense is that they are nonetheless entitled to some modicum of due process so that they can present evidence on their behalf that they’re not who we claim they are. We’ve rounded up a large number of people whose language we don’t speak in a conflict where our enemy doesn’t wear uniforms. Some number of these people, then, are sure to be innocent bystanders or at least non-threatening. We need some orderly, fair process to sort that out.

It’s nonetheless understandable that some disagree, fearing that judges would order dangerous people released. During time of war, we’ve routinely violated our founding principles in the name of security, using the argument that “the Constitution isn’t a suicide pact.” Abraham Lincoln suspended habeas corpus for American citizens. Woodrow Wilson restricted the freedom of expression. Franklin Roosevelt ordered Japanese Americans locked away in detention camps.

While I think those judgments were alarmist and unnecessary in addition to illegal, it’s not hard to see why they were made. Presidents take on a great burden of responsibility and “better safe than sorry” is a reasonable fallback position. Those of us pontificating from the sidelines don’t have to bear the consequences of being wrong.

CIA Director Michael Hayden has officially banned water-boarding, the most criticized of its interrogation techniques and one that has not been used in several years.

The practice of water-boarding has been branded as “torture” by human rights groups and a number of leading U.S. officials, including Sen. John McCain, R-Ariz., because it amounted to a “mock execution.” Today, in New Hampshire, Sen. McCain told ABC News, “I have sought that result for years. Water-boarding is a form of torture. And I’m convinced that this will not only help us in our interrogation techniques, but it will also be helpful for our image in the world.”

While new legislation reportedly gave the CIA the leeway to use water-boarding, current and former CIA officials said Gen. Hayden decided to take it off the list of about six “enhanced interrogation techniques.”

While welcoming the move, some critics say the CIA did not go far enough. “I can say it’s a good thing, but the fact remains that the entire program is illegal,” John Sifton of Human Rights Watch told ABCNews.com.

As a result of the decision, officials say, the most extreme techniques left available to CIA interrogators would be what is termed “longtime standing,” which includes exhaustion and sleep deprivation with prisoners forced to stand, handcuffed with their feet shackled to the floor. “It is a very severe form of torture which causes tremendous psychic toll to people,” said Sifton.

It is believed that water-boarding was used on fewer than five “high-value” terrorist subjects, and had not been used for three to four years.

Its most effective use, say current and former CIA officials, was in breaking Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of ongoing plots against the United States. A senior CIA official said KSM later admitted it was only because of the water-boarding that he talked. Ultimately, KSM took responsibility for the 9/ll attacks and virtually all other al Qaeda terror strikes, including the beheading of Wall Street Journal reporter Daniel Pearl. “KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again,” said a former CIA official familiar with KSM’s case.

Georgetown lawprof Marty Lederman, in a post entitled, “CIA Agrees to Cease One Form of Torture,” thinks, “Agreeing to stop using a technique that the U.S. deemed to be torture over 100 years ago . . . (not to mention a violation of the Geneva Conventions and customary international law)” is hardly a major concession.

Emperor Misha I, The Anti-Idiotarian Rottweiler, responds with “CIA Wimps Hand Another Weapon to al-Qaeda,” and notes the success the technique had in the KSM case. Of course, I’d have confessed to those things too, under torture.

McCain is right here: The value that torture might occasionally bring is far outweighed by the damage it causes.

Bill Richardson sets forth his foreign policy vision in a piece called “New Realism: Crafting a US Foreign Policy for a New Century” published in the Harvard International Review.

The beginning is standard boilerplate, with plenty of sops to the base thrown in:

US foreign policymakers face novel challenges in the 21st century. Jihadists and environmental crises have replaced armies and missiles as the greatest threats, and globalization has eroded the significance of national borders. Many problems that were once national are now global, and dangers that once came only from states now come also from societies—not from hostile governments, but from hostile individuals or from impersonal social trends, such as the consumption of fossil fuels.

That’s all innocuous enough, although it’s rather dubious to argue that “environmental crises” and “the consumption of fossil fuels” are now foreign policy threats on par with terrorism; indeed, he largely abandons that pretense for the remainder of the piece, which does a creditable job of laying out the problems before us and arguing that the Bush Administration has not taken the appropriate measures to deal with them.

The second half of the piece lays out, in fairly detailed terms, Richardson’s plan. The highlights:

• “First and foremost, the United States must repair its alliances.”

• “US leaders also must restore their commitment to international law and multilateral cooperation . . .”

• “[P]romoting expansion of the UN Security Council’s permanent membership to include Japan, India, Germany, and one country each from Africa and Latin America.”

• “[E]thical reform at the United Nations so that this vital institution can help its many underdeveloped and destitute member states meet the challenges of the 21st century.”

• “[E]xpanding the G8 to include new economic giants like India and China.”

• “The US government must join the International Criminal Court and respect all international treaties, including the Geneva Conventions.”

• “On environmental issues, the United States must be the leader, not the laggard, in global efforts to reduce greenhouse gas emissions by embracing the Kyoto Protocol on global warming, and then, going well beyond it, leading the world with a man-on-the-moon effort to improve energy efficiency and to commercialize clean, alternative technologies.”

• “[S]top considering diplomatic engagement with others as a reward for good behavior.”

• Various efforts to contain nuclear proliferation, including ratification of the Comprehensive Test Ban Treaty

• “The United States needs to start showing, both through its words and through its actions, that this is not, as the Jihadists claim, a clash of civilizations. Rather, it is a clash between civilization and barbarity.”

• “[C]losing Guantanamo.”

• “The United States also needs to pressure Egypt, Pakistan, Saudi Arabia, and other friends in the Arab world to reform their education systems, which are incubators of anti-US sentiment.”

• “[S]pend more to recruit, equip, and train more first responders and to drastically improve public health facilities, which, five years after 9/11, are not ready for a biological attack.”

• “The United States needs to lead the global fight against poverty, which is the basis of so much violence.”

• “Encourage all rich countries to honor their UN Millennium goal commitments.”

• “Lead donors on debt relief, shifting aid from loans to grants, and focus on primary health care and affordable vaccines.”

• “[P]romote trade agreements, which create more jobs in all countries and which seriously address wage disparities, worker rights, and the environment.”

• “[P]ressure pharmaceutical companies to allow expanded use of generic drugs, and it should encourage public-private partnerships to reduce costs and enhance access to anti-malarial drugs and bed nets.”

• [P]romote a multilateral Marshall Plan for the Middle East and North Africa.

Most of these policies have been Democratic Party platform bread and butter since probably the Truman Administration. Others, including various poverty reduction programs, amount to minor tweaks of existing U.S. policy. Overall, then, it’s quite sensible.

My major disagreements are on the former UN Ambassador’s quest for internationalism.

Expansion of the Security Council and G-8 actually make it much less likely that we’ll achieve his other goals of increasing multilateralism and adherence for international law. It’s hard enough to get France on board; adding the tyrants of Beijing to the equation doesn’t exactly make things easier. For that matter, increasing China’s power would complicate ethical reform at the UN, given different views as to what constitutes “corruption.”

Most importantly, joining the International Criminal Court is fraught with peril. Handing American sovereignty over to an organization dominated by Third World tyrannies simply makes no sense.

via Dave Dilegge

Yesterday’s discussion of the question, “Is It ‘Terrorism’ if Soldiers are the Target?” demonstrated the complexity of fitting modern international terrorism, or perhaps 4th Generation Warfare period, into the rubric of the international law of war which evolved over centuries.

One of the side issues we got into in the comments section was whether terrorists such as the Fort Dix Six are “combatants” under the law. Loyola lawprof David Glazier argues passionately that they are not:

Many readers are likely familiar with the famous four criteria found in Article 4 of the Third Geneva Convention concerning eligibility for POW status; i.e., requirements to: (a) be commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conducting their operations in accordance with the laws and customs of war.

What seems less well known, however, is that these criteria predate the Geneva Conventions/International Humanitarian Law by at least a half century.  They are the qualifications for enjoying belligerent rights as a  combatant first explicitly ennumerated in the 1874 Brussels Declaration and subsequently incorporated in the 1899 and 1907 Hague Regulations for Land Warfare.

The essential point is that the combatant enjoys all the "rights" of war.  Modern commentators seem fixated on POW status.  But the essential right of a combatant is authority to kill the enemy on sight and destroy his war material while enjoying complete immunity from domestic laws while doing so.  In exchange for the this immunity, the combatant is himself subject to being shot on sight.  While his surrender must be accepted if offered, an adversary need not offer the enemy this opportunity before attacking, unlike law enforcement personnel who must do so.

The issue of who qualifies as a “privileged belligerent” under the law has mostly focused on whether non-military prisoners held in these conflicts are protected by the Geneva Conventions and/or domestic criminal law. Glazier’s post, though, brings the focus back on the premise of the distinction: that organized militaries, particularly those under the color of legitimate state authority, have a special status in the law.

Tomorrow, February 13, Senator Chris Dodd will be introducing the Restoring the Constitution Act of 2007. The text of the bill hasn’t been released yet, but purports to:

The bill will restore Habeas Corpus protections to detainees, bar information acquired through torture from being introduced as evidence in trials, and limit presidential authority to interpret the meaning and application of the Geneva Conventions.

All of these are laudable goals. However, it remains to be seen what, if anything, the bill will actually do to accomplish them. Stay tuned.

(link via Mona)

As I re-read the recommendations in the Iraq Study Group (does this conjure up images of James Baker, Lee Hamilton, Sandra Day O’Connor, etc. huddled together in the college library for anybody other than me?) Report published yesterday, several points jumped out at me that made me wonder if the members of the group realized how controversial some of their proposals might be.

All emphasis in the following quotations is mine.

The first such occurs on p. 57 in Recommendation 16:

RECOMMENDATION 16: In exchange for these actions and in the context of a full and secure peace agreement, the Israelis should return the Golan Heights, with a U.S. security guarantee for Israel that could include an international force on the border, including U.S. troops if requested by both parties.

Has the U. S. ever actually given a formal security guarantee to Israel? I know it’s been talked about from time to time and, specifically, I remember Warren Christopher broaching the subject of a U. S. security guarantee in exchange for return of the Golan Heights nearly 15 years ago, but I don’t recall anything coming of that. Although I think the U. S. has an implicit security agreement with Israel wouldn’t a formal one be something of a departure?

The second controversial item is not much farther on in Recommendation 17:

RECOMMENDATION 17: Concerning the Palestinian issue, elements of that negotiated peace should include:

• Adherence to UN Security Council Resolutions 242 and 338 and to the principle of land for peace, which are the only bases for achieving peace.
• Strong support for Palestinian President Mahmoud Abbas and the Palestinian Authority to take the lead in preparing the way for negotiations with Israel.
• A major effort to move from the current hostilities by consolidating the cease-fire reached between the Palestinians and the Israelis in November 2006.
• Support for a Palestinian national unity government.
• Sustainable negotiations leading to a final peace settlement along the lines of President Bush’s two-state solution, which would address the key final status issues of borders, settlements, Jerusalem, the right of return, and the end of conflict.

Has the “right of return”, presumably the right of pre-1948 Palestinians and their descendants to resume residence in Israel, ever been mentioned in an official U. S. document before? Since this is an existential issue for Israel, I suspect that this may cause some comment.

It seems to me that this provision:

The transfer of command and control over Iraqi security forces units from the United States to Iraq should be influenced by Iraq’s performance on milestones.

in Recommendation 18 is controversial. Either the government of Iraq is sovereign in which case command and control over its security forces is not the United States’s to determine when or if it is transferred or the United States is still occupying the country in which case it has obligations for security under the Geneva Conventions which are not contingent on the performance of the Iraqi government. Recommendations 20 and 21 have similar problems.

On page 72 is the indefinite presence of U. S. military forces in Kuwait, Bahrain, and Qatar, even enhancing that presence to fufill commitments in Iraq a foregone conclusion? It seems to me that the governments of these countries might be reluctant to be permanent hosts given the U. S. performance in Iraq.

I suspect that Recommendation 50 will prove controversial for the present Iraqi government:

RECOMMENDATION 50: The entire Iraqi National Police should be transferred to the Ministry of Defense, where the police commando units will become part of the new Iraqi Army.

This would effectively insulate the Iraqi National Police, presently under the control of the Ministry of the Interior, from the influence of Moqtada Al-Sadr and his militia. That is no doubt the intent but, given Al-Sadr’s influence with the present Iraqi government, this could prove difficult or even impossible.

Indeed, I found this passage a little amusing:

In order to more effectively administer the Iraqi Police Service, the Ministry of the Interior needs to undertake substantial reforms to purge bad elements and highlight best practices.

In all likelihood the “bad elements” are the Ministry of the Interior. For at least some Arab Sunnis in Iraq the Iraqi Police Service is synonymous with Shi’a death squads.

The incoming Congress has already suggested that Recommendation 64 is probably a non-starter:

RECOMMENDATION 64: U.S. economic assistance should be increased to a level of $5 billion per year rather than being permitted to decline. The President needs to ask for the necessary resources and must work hard to win the support of Congress. Capacity building and job creation, including reliance on the Commander’s Emergency Response Program, should be U.S. priorities. Economic assistance should be provided on a nonsectarian basis.

I thought that Recommendation 65 was downright silly:

RECOMMENDATION 65: An essential part of reconstruction efforts in Iraq should be greater involvement by and with international partners, who should do more than just contribute money. They should also actively participate in the design and construction of projects.

The reluctance of international partners to get involved in Iraq is due to the lousy security situation in Iraq. Resolve that and you’ll have to beat ‘em off with a stick.

Some good news for the State Department:

RECOMMENDATION 74: In the short term, if not enough civilians volunteer to fill key positions in Iraq, civilian agencies must fill those positions with directed assignments. Steps should be taken to mitigate familial or financial hardships posed by directed assignments, including tax exclusions similar to those authorized for U.S. military personnel serving in Iraq.

As above with international partners if the security situation in Iraq were improved you’d have to beat ‘em off with a stick. In the absence of improved security we’ll draft State Department personnel and, possibly, the personnel of other agencies to fill the gap. In all likelihood that will result in just the people we need in State leaving for their health.

There are a host of other knee-slappers that challenge Iraqi sovereignty with the attendant Catch-22 for U. S. involvement and proposals that are unacceptable to the Iraqis or the other countries in the region and some of the provisions are in direct opposition to the issues that the incoming Congress campaigned on in order to get elected. If they’re very lucky, perhaps no one will notice.

Cross-posted at The Glittering Eye

Marc Danziger takes down the NYT editorial board for making the specious argument, “The Geneva Conventions protect Americans. If this country changes the rules, it’s changing the rules for Americans taken prisoner abroad. That is far too high a price to pay so this administration can hang on to its misbegotten policies.”

After providing a litany of examples of American soldiers being tortured by our enemies, he Danziger considers a hypothetical future:

Iraq, Vietnam, Korea. In which of these wars were captured American or allied troops treated in accord with the Geneva Conventions? What is the liklihood that a future American soldier, captured by Hizbollah will meet the standards in Guantanamo?

This is meant as a rhetorical question but the answer is that the likelihood approximates zero.

Danziger goes on to note that there are plenty of good reasons not to torture prisoners and I agree. But the “we have to play nice so that the other side will, too” argument last applied when we were fighting our fellow Westerners in 1945. It’s hard to conceive of a potential American adversary likely to follow suit.

The Bush administration is considering li

The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments. Officials say the amendments would alter a U.S. law passed in the mid-1990s that criminalized violations of the Geneva Conventions, a set of international treaties governing military conduct in wartime. The conventions generally bar the cruel, humiliating and degrading treatment of wartime prisoners without spelling out what all those terms mean. The draft U.S. amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.

While it makes sense to change the law to ensure that government employees carrying out their assigned duties are not subject to criminal prosecution for so doing, this would be a tragic mistake.

The problem is not that existing law is too strict but that the policy in question is wrongheaded. Following the Geneva Conventions is not only something the United States is obligated to do–indeed, the Constitution explicitly states that simple legislation can not override treaty commitments–but unquestionably in our own best interests.

Gary Farber gets it right:

Because if American power to engage in forced nakedness of prisoners, to put them on dog leashes and in women’s underwear isn’t preserved, god help the survival of our nation. And its ideals.

If America isn’t about putting people on dog leashes and in women’s underwear, what is it about?

Ironically, this comes from an administration that quite rightly ensured that the perpetrators of Abu Ghraib–although not their direct chain of command–were punished for dishonoring their uniform and setting back our cause in Iraq considerably. Hint: This is not helping.

Susie Madrak, meanwhile, sees a darker motive here: “The fact that they’re doing this now does seem to indicate they’re, oh, a little concerned about November’s midterms, doesn’t it?” Even in the crazy political climate we’re in, I don’t think they’re seriously worried about high level officials being prosecuted for exercising their judgment in national security matters.

UPDATE: In the comments below, Susie points to a May 2004 Newsweek story about a 2002 internal memo from then-WH Cousel Alberto Gonzales suggesting he was in fact worried about this possibility.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as “grave breaches” of the Geneva Conventions. Noting that the law applies to “U.S. officials” and that punishments for violators “include the death penalty,” Gonzales told Bush that “it was difficult to predict with confidence” how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing “outrages upon personal dignity” and “inhuman treatment” of prisoners—was “undefined.”

Interesting. I’m sure I read that at the time, although there’s nothing in the blog archives about it, but I’d long forgotten it. Lawyers are paid to cover all the bases but, from a pure practical politics sense, I still believe my original assessment correct.