RSS Feed MenuJohn Yoo and Jay Bybee have been cleared of misconduct by the Department of Justice’s Office of Professional Responsibility.
The final report tags them instead with “poor judgment” for their finding that the president had the legal authority to order waterboarding of terrorist detainees.
Good judgment is in the eye of the beholder I suppose. When do we get the finding in re the quality of judgment shown by the decision to try terrorist suspects in lower Manhattan – or to Mirandize the underwear bomber?
Mandos // Jan 31, 2010 at 9:32 pm
Although Al Qeda is not a country, the organization has declared war on the US. So maybe those who claim to be directed by Al Qeda should not be considered just criminals.
The application of law as to treatment of persons who wear no uniform and do not operate in a defined battlefield has now been settled law and military tribunals are a legal format to be used against such persons.
Other organizations act against the declared interests and citizens of the United States, such as Mexican drug cartels and even internal militiae. They are generally prosecuted using various felony charges in civilian courts. If Al-Qaida is such an organization, you have felony charges already enshrined in civilian law with which to attack them.
Otherwise, if Al-Qaida can be considered an entity capable of “declaring war” against the USA, then there are laws which the USA already accepts for dealing with POWs. “An entity capable of declaring war” is practically the definition of a state. If you take seriously Al-Qaida’s “declarations of war”, then you should acknowledge that they are a state of some kind—the USA claims that it controls territory, after all—and confer those legal definitions on them.
If conferring status as a sovereign state is unpalatable or impractical, then you are required to treat them as an illegal organization (like the mafia). Then civilian trials would have been the correct course. (In fact, if defeating them and their goals were the primary object of this exercise, then this would have been a perfectly good way of denying them the legitimacy they surely crave as an opponent of the USA, rather than casting them into Legend.)
The military tribunals solution based on the “unlawful combatant” semantic trick may be the “settled” creation of US politics, but it resolves neither of the goals of prosecuting a war or delegitimizing a criminal organization. It is a political solution, intended to serve political rather than military goals. It turns captured alleged Al-Qaida members into political criminals rather than, well, criminal criminals.
This will not end well.
teabag // Jan 31, 2010 at 9:32 pm
it’s Pol pot.
These people were dictators. We are a proud Democracy living and abiding within the current laws of the land and our international commitments under the Geneva Convention and the convention signed by a Republican president against torture.
You may not feel that our commitments under these agreements are important. Or that we have behaved like the tinpot dictators is important. That is your privilege. But do not try and convince me that to torture (many more than 3) to imprison innocent peasants without recourse to trial. (if the thousands released by Bush and Cheney were guilty of anything why were they released!) is how the USA should behave.
Now there are terrorists among the people handed in for the CIA bounty. These should be tries and punished.
Answer me this question, when will this undeclared war be over? As far as I can see it’s never. So you are happy to hold people for the rest of their lives without trial. That really is Stalinist. Read the accounts of the Gulags it will instruct you.
Mandos // Jan 31, 2010 at 9:39 pm
In the bigger picture, what has happened is that unresolved and irresoluble political situations in the Muslim world have instigated what might be the next evolution in state architecture: the non-territorial meta-state. The military tribunal system—a military trying foreigners outside the bounds of international law—is the USAs response to the development of meta-states, and other traditional, Westphalian states are looking with interest in that they too will face the rise of rival meta-states.
Eventually, the world will have to come to terms with the existence of meta-states either by defusing the situations that stimulate their evolution or enshrining protections to their citizens/members in law. At the moment, however, the focus is on nipping them in the bud.
Mandos // Jan 31, 2010 at 9:43 pm
On the other side, we have barbarians—in the classical, Visigothic sense—in charge of US policymaking. Essentially, people who view the painstakingly-built architecture built to create global order and civilization as a hindrance to their own particular goals, and have acted to break it down. Yoo and Bybee and so on were their instruments.
Now we have the last item of confirmation from the Democratic administration that they, too, intend to be the Visigoths of international order as a means of keeping the economic status quo while fending off China and the emerging meta-states, rather than release the pressure on the status quo itself.
We and our children will pay the price.
teabag // Jan 31, 2010 at 9:44 pm
Springy.
There is no such legal entity as a illegal combatant either in US or international law. Just because Bush said it’s so with his crooked lawyers does not make it constitutional. It’s only constitutional if it’s in the constitution or an amendment to the constitution.
There has never been an amendment to the constitution of the USA to put into US law the designation Illegal Combatant. Therefore the designation is not constitutional.
teabag // Jan 31, 2010 at 9:50 pm
Mandos,
You are right, and if we don’t fix the problem it will grow worse with each GOP administration that comes in. Eventually political opponents will be deemed as illegal combatants and shipped off to some GITMO or other. There is nothing to stop that happening. Sounds fanciful I know.
However if you has said 10 years ago that the USA would be involved in imprisonment without trial, torture and murder you would have been considered crazy.
sdspringy // Jan 31, 2010 at 9:55 pm
The argument of Mexican Drug or Militias does not really apply. They are not usually apprehended by military forces on a battlefield.
And those fighters captured on a battlefield are detained as POWs in Gitmo and other locations in Afghan. So there is no conflict there. Al Qeda is not a recognized country, no matter if it does have control over a select province or village. This fact alone makes those aligned with them outside the rules of the Geneva Conv. Saying that does not however mean the US has mistreated those they have captured. Gitmo does not strike me as a hell hole that the Americans faced in Vietnam.
Again the mafia is not a military organization, nor was it ever in combat with American forces. Not a apt application of the law.
I always look for the facts of an argument, make many mistakes myself, however I will plead the Murtha rule when it comes to believing what actually may have happened. So provide some information about the number of persons waterboarded and I will look at it. But don’t act like Murtha, making claims with no links or proof.
Teabag I agree with you, this may never be over. Unless we remove all support from Israel, and let OBL wipe them out. As per the last tape. How do you end it? You either kill everyone or surrender.
Three rules to win a war.
1. Destroy the army in the field
2. Destroy the ability to field an army
3, Destroy the will of those supporting the army., Meaning you usually kill alot of civilians. That is just the sad fact of war.
And to answer you question, I would let them go when they are too old to pick up a rifle.
Mandos // Jan 31, 2010 at 10:06 pm
The argument of Mexican Drug or Militias does not really apply. They are not usually apprehended by military forces on a battlefield.
And those fighters captured on a battlefield are detained as POWs in Gitmo and other locations in Afghan. So there is no conflict there. Al Qeda is not a recognized country, no matter if it does have control over a select province or village. This fact alone makes those aligned with them outside the rules of the Geneva Conv. Saying that does not however mean the US has mistreated those they have captured. Gitmo does not strike me as a hell hole that the Americans faced in Vietnam.
And as I stated above, there was no intention in international law of creating a category of fighters outside the Geneva convention. It doesn’t matter what instrument is used to apprehend them, they are either military prisoners (POWs) or civilians.
If they are POWs in Gitmo, they cannot be placed in front of any kind of court that imposes punishments related to the war, unless they are war criminals, in which case there are international war crimes courts to deal with that. Keep in mind when these international rules were accepted, there were many kinds of extant non-state fighters known in history; they were deliberately intended to be considered civilians or POWs. This dichotomy was intentional and rational.
Otherwise they are civilians and entitled to legitimate civilian trials. No matter who arrested them, military or civilian law enforcement.
Like the US government, you are attempting to create a semantic gap that allows the USA, as a special, exceptional country, to exist outside the bounds of settled international law, while simultaneously claiming that it is a friend of global civilization. It is unwise, and this status does not exist.
teabag // Jan 31, 2010 at 10:08 pm
Springy.
I say to you in good faith and you can check if you wish. That the vast majority of the people who were taken to GITMO were innocent peasants handed in for a bounty paid out by the CIA.
There were 13 year old boys and 90 year old men in there. They were handed in because of vendettas, greed and family disputes.
Most of those were eventually released after 5,6,7 or more years in prison without trial.
Again why did Bush and Cheney release these thousands if they were guilty terrorists? It makes no sense at all.
There are some hard core AQ guys in there at last count a bout 150. Try them how you wish and deal with them. But don’t just keep them there in limbo. Don’t torture them to force a non existent link between Sadam and 9/11.
The guy who said that there was actionable intelligence gathered from torturing these guys has just admitted that he was not even there and has no idea what was gained.
Anyone arrested on US soil should be charged and tried under US civilian laws period. No excuse for treating them in any other way.
teabag // Jan 31, 2010 at 10:20 pm
Springy.
I cant prove that more than three were water-boarded, there is so much secrecy involved. However take a look at these links about Camp No at GITMO.
The Bush administration denied water boarding ever took place, they denied that there were black sites all over the East, Eastern Europe and the Pacific island. These were true. They denied that the CIA was snatching people off streets all over Europe and the middle east, that was a lie. They snatched even Canadians off the street. So I don’t believe anything the Bush admin say. With good cause.
There have been many people who were released from these black sites who claim to have been water-boarded,. There are many “disappeared” who the hell knows where they are.
http://harpers.org/archive/2010/01/hbc-90006368
http://andrewsullivan.theatlantic.com/the_daily_dish/2010/01/camp-no.html
http://emptywheel.firedoglake.com/2010/01/18/the-murders-at-camp-no/
teabag // Jan 31, 2010 at 10:29 pm
“Three rules to win a war.
1. Destroy the army in the field
2. Destroy the ability to field an army
3, Destroy the will of those supporting the army., Meaning you usually kill alot of civilians. That is just the sad fact of war.”
Quite right, however we are not fighting an army in the usual sense. Nor are we fighting a country, we are fighting a loose organization of fanatics. They operate in many countries, they include “home grown” terrorists like the Camp Hood guy. A US citizen. This “war “will never end.
We have made it far worse that it should have been by our own actions however.
teabag // Feb 1, 2010 at 7:50 am
The 1980’s had plenty of terrorism, maybe more than today. What was Regan’s administrations attitude to terror?
Well here it is the St Ronny who is always right according to Republicans.
And 9/11 did not change this in the slightest.
Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.
anniemargret // Feb 1, 2010 at 9:05 am
Bravo, Teabag for saying it clearly and succinctly.
I am horrified at the slippery slope the Republicans are grasping. We either stand as a nation capable of honoring our time-honored ideals or we don’t. No matter who our enemies are we must never, ever allow ourselves as a nation to align ourselves at the same level as that of our enemies. Republicans have now embraced torture as a means to the end, bar none. I agree totally with you that fighting Al Quaeda is nothing like a ‘war’ in that it is a loosely integrated organization of rats spread over the globe. As we have already witnessed in Iraq, it is almost impossible to ‘win a war’ against terrorism in the strictest sense of ‘war.’ We will have spent billions of dollars and vastly undermined our military as a precious commodity in an attempt to stem the tide, as these rats just keep moving around from country to country. We need a superior intelligence system and international cooperation to fight these people to ‘win’ against them. The military can only do so much.
They are criminals . To hold them ad infinitum in perpetuity in military jails is wrong. Reading them their ‘Miranda rights’ is not the problem. If we believe they committed atrocious crimes against the American people, then we should have no fear prosecuting them and sentencing them.
I am sickened by the thought that the US government might have charged innocents and perhaps even killed those innocents under Yoo’s slam-bang attempt at the unitary executive. Disgraceful and immoral. I stand with those Americans who say if we cannot fight our enemies without giving up our own morality and ideals, then we risk our souls.
We have fought fierce enemies before – certainly the Cold War and the risk of nuclear annihilation (MAD) did not even bring us to this sorry state of affairs. We lost 3,000 of our fellow Americans on 9/11 due to sloppy and incompetent leadership, not because they were our superiors in technology or warfare. Republicans now appear to be willing to give up any or all rights, all our precious democratic ideals in the name of fighting the enemy.
Ben Franklin was correct: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
teabag // Feb 1, 2010 at 9:23 am
Thanks anniemargret.
You will notice that the shoot them as soon and as cheaply as possible crowd have no real answer to facts and logic.
Or even the common sense attitude of their hero Reagan. Run away and hide, the right has collectively peed their pants and hidden under the bed.
kevin47 // Feb 1, 2010 at 10:15 am
“A combatant not covered by the Geneva conventions is a civilian, and is therefore entitled to the protections of civilian criminal law,”
To which civilian law are you referring?
The problem with the binary approach (official soldier of an army or civilian owed due process) is that any country can then fight a proxy war, whereby their combatants are entitled to constitutional rights. The Geneva convention cannot apply unilaterally, else it would require us to release those soldiers immediately, by definition.
The proxy war scenario is scarcely hypothetical, as I’m sure you’re all aware.
This doesn’t even consider the fact that the Geneva convention requires reciprocity in order to be effective. The United States never would have signed onto an agreement to engage an enemy on terms to which the enemy has not agreed.
I’m willing to eschew waterboarding, and other practices deemed to be torture, pending a reasoned discussion of what techniques are allowable. My position, contra the hysterical assertions of the left, is not that we should “shoot them as quickly as possible”. But as long as the torture question is merely a means of deriving a principle by which to condemn the previous administration, I don’t think we’ll every arrive at a satisfactory answer, nor do I think we’ll end said practices.
I do not think offering terrorists Miranda rights is tenable, and I fail to see how doing so is in our best interests as a nation, or why it is any sort of inherent moral good. The right to a fair trial is a procedural barrier between civilians and government, the goal of which is to subvert the tyrannical imprisonment of dissidents. It is a means to an end, not an end in and of itself.
COProgressive // Feb 1, 2010 at 1:18 pm
kevin47 @ 40 wrote;
“The problem with the binary approach………”
I take it you would rather live in the murky gray area of extralegal justice. The individuals “we think /we believe” to be terrorist and we don’t know how to classify them under law, we’ll just shoot them and be done with it.
I guess it’s all part of the Cheney 1% doctrine, it there is the slightest possibility of something, take 100% protection against it. If the law get in the way, ignore it.
Now that’s a government policy any good German could live with. “I was just following orders, and I had a government permission slip from John Yoo saying it was okay to send the jews to the chambers.”
What’s the difference?
“Is it less dishonest to do what is wrong because it is not expressly prohibited by written law? Let us hope our moral principles are not yet in that stage of degeneracy” – Thomas Jefferson
Mandos // Feb 1, 2010 at 2:16 pm
The problem with kevin’s argument is, in a nutshell, that the binary categorization of people captured in combat (POWs, civilians) was specifically intended to require state actors to disambiguate exactly these allegedly ambiguous military situations (proxy wars, private organizations, etc). The whole point is that governments must decide whether they are fighting foreign countries or civilian insurgencies/organizations and treat them as one or the other.
(This is quite independent of any notion of reciprocity. As far as I know, neither international nor domestic law is based on any notion of reciprocity but instead equal enforcement insofar as is feasible.)
This is not intended only to be the human-rights-mongering of effeminate dirty hippies or what have you, although why that shouldn’t be the primary goal is beyond me, of course. It was intended in a larger context of systems established over time to stymie imperial ambitions, or at least to deny them legitimacy in a system constructed to support organized global civilization. It was intended as a practical defence the order of states: to place conflicts into categories of law that cover the rights of nation-states.
In attempting to find semantic gaps that were never intended to be there, Yoo and Bybee and all their fellow travellers including our dear host have undermined a legal system that protected state sovereignty. They did it as part of a larger—now failed—play for neocon imperium. Since the ploy, as predicted, failed, and the influence of the USA is waning, how do you think that other actors are going to exploit the proliferation of ambiguous legal entities? Do you honestly think this is a good outcome?
kevin47 // Feb 1, 2010 at 9:26 pm
“I take it you would rather live in the murky gray area of extralegal justice.”
As you mean it, and as it respects non-citizens who represent groups who are trying to kill us, yes.
“The individuals “we think /we believe” to be terrorist and we don’t know how to classify them under law, we’ll just shoot them and be done with it.”
What the hell are you talking about? I said I wanted to get information from the underwear bomber prior to reading him his miranda rights. So the only solution that accommodates my viewpoint without creating a gray area is to shoot him in the head immediately? That says more about your notion of a gray area than it does about my viewpoint.
“I guess it’s all part of the Cheney 1% doctrine, it there is the slightest possibility of something, take 100% protection against it. If the law get in the way, ignore it.”
No, we need to refine the law to accommodate a new kind of threat. Can you at least agree that existing laws are inadequate to meet a threat such as Al Qaeda, given that you advocate absolute adherence to them?
“Now that’s a government policy any good German could live with.”
The Germans to which you are referring had no interest in arriving at a consensus about what constitutes torture. I would argue that a failure to arrive at that consensus prior to suffering defeat in WWI was a precursor to the horrors of the Holocaust.
“I was just following orders, and I had a government permission slip from John Yoo saying it was okay to send the jews to the chambers.”
You demonstrate a strong fundamental understanding of history. I’d like to subscribe to your newsletter.
“What’s the difference?”
For starters, the whole waiting for a permission slip from John Yoo thing. That said, and as long as we’re making absurd, opportunistic arguments, I’m not sure FDR would have been taking advice from an internment camp of his own making, yah?
Otherwise, I would note that John Yoo is talking about people who, by definition, have been caught engaging in hostilities against American troops and innocent civilians in their own countries. Setting aside the question of whether they deserved to be detained in the first place (I’ll leave it to you to challenge the authority of our military to do so), there is no consistent application of this law along ethnic lines.
Oh, and there’s the whole thing about mutilating and murdering innocent women and children, harvesting organs, rape, extracting gold teeth, making people into lamps. I know those distinctions seem frivolous to one who is not inclined to think, but upon reflection… I mean… Yeah, reflections not in your wheelhouse, is it?
kevin47 // Feb 1, 2010 at 9:50 pm
“The problem with kevin’s argument is, in a nutshell, that the binary categorization of people captured in combat (POWs, civilians) was specifically intended to require state actors to disambiguate exactly these allegedly ambiguous military situations (proxy wars, private organizations, etc).”
I understand good intentions, but also the need to re-interpret procedure when good intentions fail.
“The whole point is that governments must decide whether they are fighting foreign countries or civilian insurgencies/organizations and treat them as one or the other.”
I disagree that this is the whole point. Further, I fail to see any wording in any treaty that accommodates a proxy war, or a multi-lateral insurgency such as that we face today.
“(This is quite independent of any notion of reciprocity. As far as I know, neither international nor domestic law is based on any notion of reciprocity but instead equal enforcement insofar as is feasible.)”
Any treaty is, by definition, dependent on reciprocity. That is the purpose of having signatories. That said, I word argue that enforcement of Geneva conventions is not at all feasible as it respects our interests.
“This is not intended only to be the human-rights-mongering of effeminate dirty hippies or what have you, although why that shouldn’t be the primary goal is beyond me, of course.”
Really, it’s beyond you? You cannot understand why this is not a purely human rights argument?
“It was intended in a larger context of systems established over time to stymie imperial ambitions,”
On what basis do you assert this?
“It was intended as a practical defence the order of states: to place conflicts into categories of law that cover the rights of nation-states.”
This makes more sense, and seems to specifically exclude an organization such as Al-Qaeda, which operates internationally.
“In attempting to find semantic gaps that were never intended to be there,”
Again, on what basis do you assert that they “were never intended to be there”?
” Yoo and Bybee and all their fellow travellers including our dear host have undermined a legal system that protected state sovereignty.”
Huh?
“They did it as part of a larger—now failed—play for neocon imperium. Since the ploy, as predicted, failed, and the influence of the USA is waning, how do you think that other actors are going to exploit the proliferation of ambiguous legal entities?”
Same as they ever have. How do YOU think the “other actors” are going to exploit said proliferation?
“Do you honestly think this is a good outcome?”
You said that your argument is independent of any notion of reciprocity, and yet it seems to hinge on reciprocity. I am arguing that no such reciprocity exists. You can’t have it both ways. Defend one viewpoint, or the other.
GOProud // Feb 2, 2010 at 10:37 am
Wow, it’s stunning to see so many far Left trolls so willingly attack America, American values and protect the right of terrorists to kill innocent fellow Americans.
And the echo chamber, circle jerk of AnnieM and TeaBagged just keeps blowing hot air with no constructive result. Stunning their level of base anger and hate against America. And these are what passes for Democrat patriots?
Mandos // Feb 2, 2010 at 9:25 pm
kevin: I think the crux of your argument (and our disagreement) has to do with the alleged uniqueness of so-called proxy wars and insurgencies. A proxy war is either ultimately traceable to a state actor or to a civilian organization; same with an insurgency. These have established legal procedures, some of which the USA itself has instigated and supported.
Non-state actors, or indirect state actors acting in armed conflicts is not new and doesn’t require the proliferation of additional legal categories if the goal is to deal with combatants in a just way, and in particular one that doesn’t presuppose their guilt. The Yugoslav war crimes trials exist explicitly under a (US-supported) assumption that non-state actors are bound under the Geneva conventions and international law as it applies to human rights.
The only reason why al-Q, etc, differ from any of these situations, is their particular current position in the firmament of perceived US interest. In time, the worm will turn, and the US will again demand a broadly dichotomous interpretation of international law while e.g. China takes the opposite position in re Taiwan, etc. The goal of a stable international order demands a non-oscillating accepted interpretation of international law, without the capacity for individual states to unilaterally decide that there exist gaps in the law precisely contrived to suit the situations that match their passing interest.
Reciprocity is not a requirement of the Geneva conventions or international law in general. Signatories to the Geneva convention are considered bound by it regardless of the nature of the opposing side. Non-state combatants are considered to be bound under regular civilian law.
All of this is available both in the texts of the conventions and on Wikipedia. Check the entries for the Geneva conventions and for “unlawful combatants.”
Mandos // Feb 2, 2010 at 9:31 pm
kevin: re the matter of human rights. I have not based the arguments I have made so far on human-rights axioms, because I know that in this environment/forum, that would hold even less sway than an argument based on the need for law and order. However, as pertains my own motivation, it is indeed one that desires to reduce and circumscribe direct state violence upon the person.
Taking the long view, this is actually required for a stable international order, so they are actually the same argument. But: it’s not one I’d make around here in any real detail or cost of effort.
GOProud // Feb 4, 2010 at 1:07 pm
David rightly asks: “When do we get the finding in re the quality of judgment shown by the decision to try terrorist suspects in lower Manhattan – or to Mirandize the underwear bomber?”
I noticed the netLeft nutJobs here avoided that question like a plague.
When, you ask David? Never. We won’t get a finding because when the GOPers recapture the WH for the People in 2012, we’ll follow our long tradition of not playing backward politics like the Dems play. We move forward. We won’t ask the DOJ to investigate the criminality of ACORN, even though the DOJ, the IRS, HUD and dozens of other govt’al agencies let that ripe watermelon fall to the barn floor because it means holding a mirror and light up to the Democrat Party’s corruption. We move forward.
We won’t ask DOJ to investigate the near-criminal tax evasion episodes by Obama cabinet hires, cabinet staff, EO staff, czars and the like. We move forward.
We won’t investigate the backroom corruption that Obama’s 2008 campaign brought into the WH –a WH that had finally purged itself 8 yrs earlier of the self-dealing, sexual predation and campaign finance corruption known as SlickWilly & the Band of Criminals. We move forward.
We won’t question the use of presidential pardons and Eric Holder’s role in letting another batch of criminals and federal felons off the hook because they gave money to the Obama camp. We move forward.
David, we’ll never get a finding that Obama and Holder were Conscientious Objectors in the War on Terror because, even though they are, driving them from office in disgrace in 2012 will be far, far better than any finding that a group of lame civil rights lawyers dropped the ball in the Christmas Terrorist case or the handling of KSM & his band of Obama supporters.
Are those Hillary Clinton’s daggers I hear being sharpened in the wings? Watch out Obama, when she’s says she has your back… she doesn’t mean it like a Chicago Thug street fight.
Polemicist // Feb 19, 2010 at 7:32 pm
Mandos: In the United States members of Al-Qaeda can be “prosecuted” by military tribunals as unlawful combatants unless the meet the criteria of GC-III Article 4. During the tribunal, the Al-Qaeda “defense counsel” may be able to establish that they are “chaplains” which would finesse the Al-Qaeda failures to meet the following criteria:
(a) that of being commanded by a person responsible for his subordinates ;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.