Andrew Sullivan’s Dear President Bush

by Tommy Crocker

I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.

Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.

Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.

“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”

Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”

Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:

“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”

Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive.

As James Bennet, the Atlantic Editor, suggests in his Editor’s Note for the October issue: “[T]here is nothing cynical or glib about Andrew’s request: he knows he is not asking the former president to do an obvious or easy thing. Indeed, the difficulty of the step, if Bush took it, would give the measure of the man’s character, and the sense of honor and public responsibility of the Bush family.”

Such appeals to “the man’s character,” a “sense of honor” and the responsibility of a dynastic political family all fall well outside the typical discussion of national security policy and the illegality of torture. On the basis of such generalizations, can the former President Bush really put back together what he has broken? Can it be that the legal and moral integrity of official government practices rely on President Bush’s character (and continue to do so many months since he was in office)? To think so places far too much emphasis on a view of President Bush the man, not President Bush the office. It as if by shear dent of character President Bush could own up to his adolescent drunken behavior the night before by assuming a sober and reflective apologetics the day after. But politics is not a fraternity party, and our system of government does not rely on “Enlightened statesmen” always being “at the helm.” Madison’s idea brings into focus what is missing from all this talk of executive unilateralism: the need for other institutions and the people to have a say in the matter. Until 2006, there was no Congressional oversight. We now have the Senate Armed Services Report. We also have a Department of Justice investigation. These steps involve other governing institutions playing their oversight role, even if the political atmosphere is at best vexed. Restoring America’s reputation as a nation devoted to the liberty and dignity of persons requires restoring America’s governing institutions.

Relying on former President Bush to take full responsibility leaves us institutionally vulnerable to the next unenlightened statesman to take the helm. I use “unenlightened” purposefully here. For if any one thing helped define the emerging spirit of enlightenment, it was the rejection of practices such as torture (I think Lynn Hunt’s book, Inventing Human Rights, tells the story well). The ready resort to torture is the paradigm of unenlightened statesmanship. Our governing solution is to check the unenlightened impulses of Presidents such as Mr. Bush and his vice president, through the governing responsibility of others. No doubt, this system of checks, manipulated through fear of the next attack, has not worked terribly well of late. But if no other institutions do their job to hold former (and continuing) executive officials responsible, then we are as vulnerable as ever to future acts of torture, depending on the “character” of the person occupying the office, and his or her commitment to our founding enlightenment ideals. No matter the political difficulty—and whoever thought taking moral responsibility or holding others morally responsible is ever easy—we should expect nothing less than full institutional accountability.

This need for institutions to play their constitutional roles in holding others responsible is a key problem with using reconciliation discourse. In the case of official practices of torture, there is no political, ethnic, or cultural group who needs to reconcile with another. Rather, there are individuals who broke the law while other individuals, who were constitutionally bound to faithfully execute the laws, either did nothing or actively sought to justify illegal conduct. Although there are no groups in need of reconciliation here, there are certainly individuals (and institutions) who need to take responsibility or be held accountable to others.

Let me hasten to add, that I do largely agree with Sullivan. I think enormous good might flow from an open, honest, and thorough apology from President Bush. I simply think that it can only be one component of a full accounting of those responsible for torture. President Bush did not, and could not have, acted alone. He required the active support of many others to perpetrate official, systematic, and purposeful acts of interrogational torture. Even now, his vice president brazenly defends policies of torture (though always certain to use euphemisms, as if “torture” were only a word), while criticizing the current administration’s attempts to alter those policies. Such active support for policies Sullivan has no problem calling torture, cannot be institutionally displaced by President Bush’s apology. Indeed, the former vice president’s campaign can only auger the return of torture at some future time if no one else takes any further institutional or individual responsibility—whether through prosecutions or new legislative initiatives. Every bit of Sullivan’s argument applies equally to former Vice President Cheney. I presume the difference for Sullivan is implied by his operative premise: Sullivan believes that Mr. Bush is a decent man who might respond to his entreaty.

President Bush’s apology could provide great moral and political weight to any future legal forums that judge specific officials for their conduct, forestalling some of the impact of the “already polarized society” Sullivan fears prevents criminal prosecutions. And one certainly wants to say with Sullivan regarding the nation’s reputation and commitment to the rule of law: President Bush, you broke it; would you have the decency to help fix it? Maybe Mr. Bush is waiting for the appropriate opportunity. It is up to Congress, the Attorney General, and the American people to provide that opportunity.

http://opiniojuris.org/2009/11/10/andrew-sullivan%e2%80%99s-dear-president-bush/

14 Responses

  1. Sorry, but there are Four colossal problems that rip straight to the heart of this “argument” and keep right going.

    1. Firstly, the use of torture against unlawful combatants (which, if you look in the dictionry, I hear is found right next to a picture of AQ and the Taliban beheading a prisoner and/or hiding in a crowd of unarmed civilians) is not forbidden by Geneva or any international law save for the nonbinding and extremely vapid declaration that torture under any set of circumstances is wrong (which to be fair, the US did sign on to). Under international law, these individuals are liable to be shot without a trial or even the benefit of being officially taken into custody (as happened to the Nazi German ”Werwölfe” organization after WWII and your mixed bag of attempted infiltrators during the cold war). Anything further to those obtained directly on the battle is done at the whim of the governments involved, which they have the right to withdraw at any time they wish for whatever reason they wish to. Brutal, but true.

    2. It takes the idea that “torture is never ok” at face value, which is bluntly flawed to a fatal degree, particularly given the historical record (it is likely that the 1944/45 Ardennes offensive would have crippled the Western Allies more than it did were it not for the fortunate coincidence that a German general and his courier made the mistake of stopping at an American post several miles from the frontline, to cite but one). You can argue under what circumstances it may be conducted, but to argue that it should be verboten under any and all circumstances is not merely foolish, it is immoral, and does not grasp the reality of war, particularly an asymmetric one.

    3. Does waterboarding and the other tactics whose uses were confirmed constitute as torture? Now, I personally believe they do (albiet as a comparatively mild (the key word here being comparatively) to what has been and is done). But even if we accept that Waterboarding and the use of music playing continuously are torture, the question opens to how to define torture and percisely what constitutes it legally? Without clarifying this, any posturing on the issue is rather moot.

    4. The first and foremost duty of the American President is the defense of the American constitution, and that of his compatriots is usually similarly defined for their respective national documents. And part and parcel of that is that the President be prepared to defend against any threats foreign and domestic. If forced to choose between obeying that directive and obeying international law (particularly ill-defined and rather vapid ones, such as the open statement condemning torture), there can be no question as to which he is obliged to follow.

    This is simple political science. And while I also concur that reneging on International agreements (and particularly international law) should never be done save in times of undeniable crisis (and even then with only due consideration), and that punishments should be affixed to those who have done so unnecessarily (which, again, forces us to clarify necessity: the atomic bombs were not strictly necessary to defeat the Japanese Empire, they were just necessary to avoid either the one of the- if not THE- bloodiest invasions in history or a several year blockade against the home islands), the bottom line is that at some point in time, you have to make a judgement call and let the historians sort out the rubble.

    I cannot say I like it, and I have had the luxury of visiting a few of the sites where that unfortunate necessity played out in its ugliest (Dresden, Hiroshima, Nagasaki, Berlin, and Vienna).

    But that does not change the fact that sometimes, you have to make such calls.

    Without recognizing this factor, and without accepting the fact that international law has only survived the past hundred years in any form above paper is because of the actions of men such as Churchill, Lloyd George, FDR, and Truman, who were- when pressed and facing no real “good choices”- capable of breaking it, all this editorial has done is expend bandwich.

    Sobriety is not defined as being able to see clearly at all times, it is by being able to examine a situation and make reasonable descisions. And sadly, we live in a world where torture against some of the more dangerous and fanatical prisoners we acquire actually is the sober choice to make under some circumstances. This does not mean we should use it liberally, only that we must realize that sometimes, it is either a necessary evil or the lesser of two evils.

  2. I’m sorry, but this time I couldn’t go past this…

    *sigh*

    1. Firstly, the use of torture against unlawful combatants (which, if you look in the dictionry, I hear is found right next to a picture of AQ and the Taliban beheading a prisoner and/or hiding in a crowd of unarmed civilians) is not forbidden by Geneva or any international law save for the nonbinding and extremely vapid declaration that torture under any set of circumstances is wrong (which to be fair, the US did sign on to).

    Uhmmmm, if “unlawful combatants” means civilans, then;

    The 4th Geneva Convention would come into play wouldn’t it?
    IV Rules for the Protections of Civilan Persons in the Time Of War(this would be considered a time of war as AQ had declared a Jihad?).  This convention secures humane treatment for persona in occupied territories and those who have been interned on the suspision of involvement in resistance movements.  The former class of ‘protected persons’ are entitled to respect for thoer family, customs and religion, and women are guaranteed protection from rape and forced prostitution.  Civilans may not be used for reprisals or as hostages, or as forced labourers or subjects of mass deportations.  The occupying power can not punish civilians for activities prior to the occupation, and is erntitled to execute them only for acts of spying, sabotage or murder.

    I could be wrong though, and if I am, then I am, and I should probably just go back to lurking around here…

    3. Does waterboarding and the other tactics whose uses were confirmed constitute as torture? Now, I personally believe they do (albiet as a comparatively mild (the key word here being comparatively) to what has been and is done). But even if we accept that Waterboarding and the use of music playing continuously are torture, the question opens to how to define torture and percisely what constitutes it legally? Without clarifying this, any posturing on the issue is rather moot.

    Geneva convention No. 3?
    Rules for securing the humane treatment of prisoners-of-war.
    Unfortunately a rather hard convention to enforce, when (sometimes) even the parties taking people hostage are not able to have these luxuries themselves.  But I’d think that the US should have quite easily been able to account for this convention.

    It might be simple political science, and you may try to fight it like that, but this is an International Law blog after all.

  3. Please ignore the first part, I mis interpreted what was meant by “unlawful-combatant”, not civilian, terrorist…

    Both could be reverted back to Convention No. 3? I think.

  4. A:

    “Geneva convention No. 3?Rules for securing the humane treatment of prisoners-of-war. Unfortunately a rather hard convention to enforce, when (sometimes) even the parties taking people hostage are not able to have these luxuries themselves.  But I’d think that the US should have quite easily been able to account for this convention.”
    As stated previously, Geneva does not apply to most of the groups that we happen to be fighting, since terrorist groups in particular and guerilla/irregular groups rarely follow it. As such, they are not protected by Geneva, and thus they are not eligible for POW status and the protections enumerated for it, but something else entirely that I honestly do not know what the proper name is (detained enemy combatant? No idea).
    As mentioned, you are legally allowed to shoot such individuals as soon as you can identify them as such without the benefit of even the flimsiest trial right on the battlefield. Naturally, I am not advocating this action be taken in all cases (in no small part because not only is it highly distasteful and liable to be abused in horrible ways- which should be reason enough in all but the most trying circumstances- but also because I have a feeling that most of those involved are not the Islamist “Old Guard” form Afghanistan, Chechnya, etc, but relatively young idealists who may yet be turned if anybody really invested the time and effort to do so) or that we should go overboard like the Germans did regarding “partisans” in 1870, 1914, and WWII, merely that it should be clear that the options legally exist, and that if the subject is of high enough importance and/or risk, that option should be available if the circumstances are judged to be dire enough.
    Now, if we were facing a regular army (say, the Russian, Iranian, or Chinese one) that actually DID follow the laws of war, that would naturally be different. But that is not the case here.
    “It might be simple political science, and you may try to fight it like that, but this is an International Law blog after all.”
    True, but again, even if we were to feed every prisoner we take on the battlefield in Iraq and Afghanistan to a paper shredder ala Saddam, a Great white, or (perhaps worst of all) my cats, that would still not be in violation of international law. Common sense and morality? Yes. International Law? No.
    Which is why I must state that while torture should not be treated lightly, dispersed liberally, or done without umpteen levels of both military and civilian oversight, in some cases, it is sadly the least of all evils, and when applied to the Islamist irregulars/terrorists we are facing currently, it is also quite legal.
    As I mentioned before, one shouldn’t drop other methods of extracting information (yhe good olde sympathetic interrogator can, given the prisoner, be just as effective if not more so than breaking out the water and the plywood board, or worse), and it should largely be limited to either those on the top rung of the enemy pecking order (the truly beyond the pale hard-core nutters, such as Zawahiri and Osama Bin Laden) or those with particularly sensitive information of who are suspected of having such information, the classic 24 “ticking time bomb” scenario.
    But the option still legally remains on the table, and in the case of individuals such as Khalid Sheikh Mohammed and other die-hards, it may indeed be the only way forward.
    It isn’t pleasant, but it is legal as per all international boundaries save for that non-binding agreement, and in the days, months, years, and decades ahead- like those in the past- it may, on certain occasions, be necessary, particularly when it is out by a head of state whose top obligations are national survival. Any essay regarding torture that does not recognize and address this inherent gap is simply consuming bandwich.
     

  5. In regards to what is being talked about in this particular post, it does.
    As it is talking about the POWs in Abu-Grahib and Gitmo…

    Maybe you need to start your own blog, as I think the scholars who post here would rather keep their discussions on-topic.

  6. It’s remarkable how little Eric knows what he is talking about.  It makes no difference whether terrorists qualify as combatants or civilians, which are the only categories that exist under the Geneva Conventions; the Conventions categorically prohibit the use of torture against both during armed conflict.  And the prohibition against torture in CAT — which, contrary to Eric’s assertion, is binding on the US — applies in peacetime, as well.

    And no, you are not allowed to summarily execute anyone, even terrorists and spies.  That radical rule was established way back in the 1940s by the Nuremberg Military Tribunals. And Nazis were executed (not summarily) for violating it.

  7. By the way, there is a name under the Geneva Conventions for a terrorist who does not qualify as a POW because he fails to fulfill the criteria for combatant status — civilian.

  8. A:

    Abu Grahib, more than anything else, seems to have been a few morons (to use a VERY polite term) jerking around independent of any real chain of command. Not necessarily because the stroy was first blown by a military investigation (it is a pretty good sign, but they could theoretically have done so to draw attention off them), but because of how mind-numbingly stupid they were. Sorry, but one of THE fundamentals of interrogation (of which torture is a part) is that you don’t punish a target without reason. Like a mouse in a lab, you offer positive inducements for cooperation, negative ones for resistance, and you change those inducements based on your subject.

    If there is evidence that the idiots at Abu Grahib were anything more than freelance sadists abusing their position for no good whatsoever, I haven’t seen in. And it is telling that they ARE being or HAVE BEEN tried, and many of them have been convicted, and rightfully so.

    Gitmo is far more relevant: one one thing, the US government had- and to my knowledge still does- give its approval to what happens there. Now, precisely what happens there is shrouded in hearsay and wild rumors save for a few that have been confirmed (water-boarding being the most infamous example), and I dare-say that it will take a few more years before the evidence of what happens there will come out to the general public, if then, where we can discuss whether what  happens there constitutes torture, and if so what portions of it. But again, I must re-emphasize that even if it does, I must remind you that save for the nonbinding agreement, there are no protections for combatants who do not adhere to Geneva, and any that are extended are done so at the capturer’s whim.

    And HOW am I getting off topic? I wrote a refutation to this post centering over what I believe is the misdirection of its emphasis, and pointed out that torture has not only proven its worth in some cases in the historical record, but also in the case of the Jihadists being pulled in from Iraq and Afghanistan, it is actually quite legal. How is that off topic?

    Mr. Heller: Good, you’re back. I was afraid exposure to those few sentences you had cherry-picked out of my last post had sent you into a cardiac arrest or something. I was almost worried enough to ask your client to check in on you, but it is nice to know that will not be necessary.

    By the way, did you ever get around to answering the points once you had gotten passed your shock?

    Anyway…

    “It’s remarkable how little Eric knows what he is talking about.”

    Now THIS should be a laugh…


    It makes no difference whether terrorists qualify as combatants or civilians, which are the only categories that exist under the Geneva Conventions; the Conventions categorically prohibit the use of torture against both during armed conflict.”

    Firstly, I must apologize for forgetting Geneva 1975, and that does indeed change my analysis.

    But again, up until 1975 (which I must say that I forgot previously, my apologies), that was not the case. And even now, I would like to see the court enforce that for its use against those who do not adhere to Geneva in the first place. Simply put, it DIRECTLY contradicts the original accords (where if you are not protected or otherwise are not following them, you are not worth the bullet that will execute you), and the sad fact of the matter is that there has yet to be a case where anybody has been tried for it. No enforcement, no law. That might not be the “right” interpretation, but it is the brutally realistic one: where has anybody truly been tried and convicted for it independently? And since the disasters of the League of Nations shows that international law is only as effective as its precedent and its enforcement, I doubt Geneva 1975 will go far, even without considering the most salient points against it: its vagueness and its absolute nature.

    Simply put,  I would like to know precisely how far the UN would like to go in upholding that “no extenuating circumstances whatsoever” clause in the age of nuclear proliferation and small asymmetrical organizations that can strike without warning and cause vast damage. For some reason, I don’t think it would last very long.

    And secondly and most importantly from the LEGAL standpoint, what constitutes torture? Careful, because if you define it too narrowly, that allows plenty of nasty coercive measures to remain legal, but if you define it too broadly, you will have to bring pretty much any police department or even frat group that exists to trial in order to uphold it? Simply put, the Geneva 1975 definition does not hold water under such circumstances, particularly since it ignores the legal precedent for it.

    “And the prohibition against torture in CAT — which, contrary to Eric’s assertion, is binding on the US — applies in peacetime, as well.”

    I concede that point, because I remembered the nonbinding agreement, but I forgot Geneva 1975. My apologies.

    “And no, you are not allowed to summarily execute anyone, even terrorists and spies.”
    That radical rule was established way back in the 1940s by the Nuremberg Military Tribunals. And Nazis were executed (not summarily) for violating it.”

    Legal precedent says otherwise. Just as Nuremberg was going on, Allied forces both Western and Eastern were uncovering and summarily shooting hundreds of “Werewolves”, pro-Nazi guerillas fighting outside of the rules of war and whose tactics and targets could very well have them labeled as terrorists in this day and age.

    And nobody was tried for it.

    How does that mesh with the theory that you can’t legally summarily execute anybody?

    “By the way, there is a name under the Geneva Conventions for a terrorist who does not qualify as a POW because he fails to fulfill the criteria for combatant status — civilian.”

    Unless I have missed some other revision that has completely gutted the meaning of the original, that is not so, and was never indented to be the case.

    And I would also like to see somebody just TRY to legally settle such a case on that basis.

    Geneva was never meant to extend to those who were not protected and did not follow its directives (the notes and drafts make THAT abundantly clear), and even if we accept Geneva 1975, that does not change the fact that groups like Al-Qaeda do remain distinct from civilians, and that one may legally dispose of them in ways that one is rightfully not allowed to use on legal combatants or civilians. The werewolf case proved it, as did the treatment of North Korean and Chinese “infiltrators” during Korea: those who do not obey the rules of war  are not to be protected by the original Geneva, and even if you can’t torture them (a dubious legal claim that will prove unworkable when any stress is applied to it, given historical precedence), you are still allowed to shoot them.

    (Oh yes, and about those restraints: apparently, their use on defendants during the trial was authorized during the “Malta Tribunals” after WWI, the prototype and black sheep of international tribunals. While they are largely deemed as “failed”, they did result in several completed trials and convictions, and much of their operating procedure was later integrated to the trials at Tokyo and Nuremberg. It is relatively indirect, and I doubt that there will be any documentation proving the issue up or down , but it does show legal precedence of in-trial restraints during international trials).

  9. Abu Grahib, was actually leaked by the Red Cross.
    I’m pretty sure Gitmo was military investigation.

    How is a signed convention “non-binding”?

    That all might (I emphasise the word might here) happen (and to be clear I am talking of your assertion that captors do not follow the Geneva Conventions), but again this is an International Law Blog.  So assertions of political wrong doings do not make them lawful.
    No one here is saying that they don’t happen, what we are saying is that there should be more enforcement of the conventions to make sure that people ate not tortured.

    It’s never lawful, I’m not sure how KJH could have put it more plainly, but here it is again;
    “the Conventions categorically prohibit the use of torture against both during armed conflict.  And the prohibition against torture in CAT — which, contrary to Eric’s assertion, is binding on the US — applies in peacetime, as well.”

    The Geneva conventions were written in 1949?    The Protocols Came into play in 1977.
    Or did you mean the UN charter that was written in 1975?
    Getting dates right might help your argument as well.

    And secondly and most importantly from the LEGAL standpoint, what constitutes torture? Careful, because if you define it too narrowly, that allows plenty of nasty coercive measures to remain legal, but if you define it too broadly, you will have to bring pretty much any police department or even frat group that exists to trial in order to uphold it? Simply put, the Geneva 1975 definition does not hold water under such circumstances, particularly since it ignores the legal precedent for it.

    The UN Charter from 1975;
    any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for and act he has commited or is suspected of having ccommitted, or intimidating him or other persons.

    Legal precedent says otherwise. Just as Nuremberg was going on, Allied forces both Western and Eastern were uncovering and summarily shooting hundreds of “Werewolves”, pro-Nazi guerillas fighting outside of the rules of war and whose tactics and targets could very well have them labeled as terrorists in this day and age.
    And nobody was tried for it.
    Over-looking or turning a blind-eye to something does not make it legal.  They may not have been tried for those offences, but unfortunately in those instances the international community, as with many other Human Rights violations have turned a blind eye.

    How does that mesh with the theory that you can’t legally summarily execute anybody?

    Again, just because someone does something (and gets away with it), does not make it legally binding.  It is unfortunate and sad that these people were protected after breaking the law.  This does not make what they did legal though, quite illegal.
    If I drink, drive, then kill someone as I’m driving, and get away.  Does that void the illegality of what I did? No.

  10. Oh and in regards to water boarding, it becomes quite hard to breath as you have liters of water being poured on you at once and with force.

  11. There is no such thing as “Geneva 1975.”  I imagine you are referring to the two Additional Protocols of 1977, but those are irrelevant to whether it is permissible to torture.  Again, there are no gaps in the Geneva Conventions: if a person qualifies as a POW, he is protected against torture by Art. 17 of GC III.  If a person does not qualify as a POW, he is protected against torture by Art. 32 of GC IV in international armed conflicts and in occupied territory and by Art. 3(1) of GC IV (Common Article 3) in non-international armed conflicts.  Indeed, the US Supreme Court held in Hamdan that “at least” the protections of Common Article 3 apply to terrorists regardless of the precise legal nature of the conflict.

  12. Of course, we all know that in our current world politics trump legal argument. So, although we all agree “command responsibility” applies, we should not apply it here because it would be so tremendoulsy, and unfortunately, hindering those nice politicians in making the world a better place.

  13. Alright everyone, sorry for the delay in responding.

    Anywho…

    A: Having volunteerd to have it done to myself, I agree. And that is why I (unlike most Conservatives) do not dispute that waterboarding constitutes torture when done without one’s consent. The main issue I bring up is when such measures are necessary. And while I concede that I was wrong on the status of such methods, and that the Geneva 1977 agreements (not 1975) do make it illegal for any reason whatsoever (at least in theory), I would posit that such a law flies in the face of a good 80%+ of international law and PARTICULARLY the early Geneva conventions. And this is before we get into necessity and the requirements of assymetric warfare in the digital era, where it is safe to say that it goes out the window whenever the pressure ramps us to sufficient levels, and rightfully so.

    KJH: Yes, I recognize my errors, and I apologzie for the mistake that it is not against international law (at least on paper) and that it was not signed i 1975. While (to my pathetic defense) there was a Geneva 1975, that was a local telecommunications bill rather than an international agreement, and while I did see 1975 applied to the international agreement, I should have double checked the date. And for that, I accept the full blame.

    Now, onto the issues of the case:

    “If a person does not qualify as a POW, he is protected against torture by Art. 32 of GC IV in international armed conflicts and in occupied territory and by Art. 3(1) of GC IV (Common Article 3) in non-international armed conflicts.”

    In THEORY. In practice, I have yet to see a case where that law was applied, against Communist infiltrators (who had CERTAINLY violated Geneva) bythe Western Allies in Korea  and Indochina, against Polish guerillas (who, to be fair, made some attempts to follow Geneva- particularly the former- but who dropped several parts of it dealing with uniforms and attacking under a flag of truce when it became obvious that neither the Soviets nor the Germans were particularly dedicated to honoring those agreements anyway) by the Soviets in Eastern Europe, against the Hungarians in 1956, and (more recently) byt he two sides of the Vietnam and First Persian Gulf Wars against each other. 

    In other words, these laws largely exist on paper, particularly when historical precedent (EVEN AFTER they were passed) largely flies in their face. The historical precedent has followed the original terms of Post-Geneva I-III warfare, and if the ICTY and ICC refuse or neglect to enforce Geneva IV (probably due to the sheer inpracticality of enforceing it without precedent), than can you really blame nations- often in times of crisis- for neglecting it, particularly in an era when the possibility of a device carryable in a suitcase leveling a capital city has moved from the realm of science fiction and into reality.

    No precedent, no enforcement, no attempts to enforce it, no real law. The futility of having such measures but not enforceing them was shown by WWI, and when international bodies either refused to or lacked the ability to punish violators (such as Imperial Germany’s use of gas, unrestricted submarine warfare, and even less pleasant behavior in Eastern Europe and -infamously- Belgium), don’t expect even the nobler forces involved to adopt a few measures out of sheer necessity (the use of poison gas by the Western Allies and the practice of unrestricted mining). 

     ”Indeed, the US Supreme Court held in Hamdan that “at least” the protections of Common Article 3 apply to terrorists regardless of the precise legal nature of the conflict.”

    Wonderful. And once the Islamists or other irregular forces (such as your client’s allies and enemies in Yugoslavia) sign up to it, I would have no compulsion against it.

    What’s that? They don’t? In that case, sorry, but that is again more writing on stationary, particularly since it flies in the fact of the original articles that are still accepted. As it is, more than a few of these agreements directly contradict Genevas I-III, to say nothing of the Hagues or earlier international treaties that are either still recognized as valid in part or in whole. So, are we supposed to accept Geneva I’s defintition or Geneva IV’s? 

    Sorry, but when international law cannot mesh with reality or even with itself, do not expect many to follow at the very least those parts that condract each other or are impractical. An old saying (or my close paraphasing of it, depends on how good my memory is) is that ”nothing is more injurous to law and order than passing laws that one cannot or will not uphold.”

    Any case study of the League of Nations or of Geneva IV would have realized it. The simple fact of the matter is that one could sign into international canon a law that none shall inflict bodily harm upon another or ont hemselves.

    Just don’t be surprised when none- even if it were to obtain a few signatures- follow it. Simply put, just as outlawing bodily harm will not eliminate people who desire to do it or even- in some cases (think SS coming down to the ghetto for a massacre, or some similar case of immenent threat against the innocent)- the need in some cases to do so. Just as outlawing torture will not eliminate it or end the need in this era of asymetrical warfare and WMD proliferaton to occasionally do so.

    The bottom line is how many lives did waterboarding KSM save? And is following the laws conductive to either the national obligations (as Tsutsugamush put it, “Command Responsibility”) or to the general welfare (what if KSM had set in motion a plan targeting Berlin, or Moscow, or Canaberra?)?

    At the end of the day, each nation and each individual will follow what they percieve to be the most expedient route, some because they desire to, some because they must. And if a law cannot even be enforced and indeed runs counter to its own canon and to historical precedence, should we really be surprised that in dire circumstances, even the noblest cannot avoid breaking it?

    Tsutsugamushi: “So, although we all agree “command responsibility” applies, we should not apply it here because it would be so tremendoulsy, and unfortunately, hindering those nice politicians in making the world a better place.”

    I would agree in the abstact but disagree in many of the specifics. Simply put, while torture may well hinder international law’s coming of age and well-meaning politicians from designing a better world, it is easily outpaced in that aspect by men such as Osama Bin Laden and Omar al-Bashir, who have no intention of following those laws. Particularly when they- or their stronger incarnations, such as Hitler, the “Iron Hat Cabinet” of Imperial Germany, Lenin, Mao, Pinochet, and Franco- may one day topple those well-meaning politicans writing a better world into existance and instead try to remold the world in their image.

    And sadly, even those well-meaning politicans and national leaders will be forced to either ramp up the way they wage war- not necessarily to the level of the aforementioned people, and usually not permanently- or be swept aside by those who do not share their scruples.

    I do not like the idea of torture, and I firmly think it should be limited, but until human nature changes for the better or warfare becomes obsolete, I see no hope for its complete abolition.

    Because of the two world wars showed, the path to a better world is often built on blood.

  14. Eric,

    I’d just like to correct a false statement you have made:

    “If there is evidence that the idiots at Abu Grahib were anything more than freelance sadists abusing their position for no good whatsoever, I haven’t seen in. And it is telling that they ARE being or HAVE BEEN tried, and many of them have been convicted, and rightfully so.”

    These individuals were not freelance sadists. Some of them did inappopriate acts with detainees on their own volition, but for many of them, the things for which they were charged and convicted involved things they were *ordered* to do. Their obeying-orders defenses failed because they knew the orders to be illegal.

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