Charles Dunlap on why using the military in law enforcement is a bad idea

(Welcome, Instapunditeers, and thanks, Glenn, for another Instalanche! I've cleaned up the grammar in this post a bit and added some links and references for further reading if anyone is interested.)

Charles Dunlap is one of the finest military lawyers around - deputy judge advocate general of the Air Force - and someone who knows as well as anyone in the US does the pros and cons of having the military involved in law enforcement in both practical and theoretical ways. This op ed column in today's Washington Post, "Putting Troops on the Beat," September 30, 2006, here, is very important reading:

... The 1878 Posse Comitatus Act bars most direct military involvement in law enforcement, with several exceptions, including civil disturbances. Since Sept. 11, 2001, such threats as terrorist use of weapons of mass destruction have given the armed forces new legal authority. Should there be more?

Americans don't seem especially worried about increasing the full-time military's role. Despite troubles in Iraq and detainee abuse scandals, polls show that the armed forces are the most trusted institution in American society. Nevertheless, few models exist around the world in which the recurring use of militaries in law enforcement furthers democratic values.

Yes, it's true that military troops, unlike civilian police, can't quit their posts. But it's dangerous to think veterans of the mean streets of Fallujah would necessarily approach a task the way Big Easy cops on the beat would. In this respect, the military's versatility can be misunderstood.
Most conventionally trained soldiers advance on potential threats with a view toward destroying them, not arresting them. They don't expect to reason with "the enemy." A soldier's authority is his weapon and his willingness to use it.

Typically, police rely on public respect for the rule of law, expressed in the authority of the badge. They exercise the studied restraint the judicial process requires. Suspects are not "enemies" but citizens, innocent until proven guilty. The elimination of "threats" is the job of the courts. Weapons are defensive last resorts.

Converting the war-fighting mind-set of the professional military to one that readily accepts the risks -- and delays -- inherent in policing under our Constitution can be extremely challenging and confusing to those wielding the guns and attempting to establish order.

I've written on the differences between soldiers and police before, in the peculiar context of a 1997 panel discussion at the American Society of International Law on law and literature. I chose as my text Nicholas Shakespeare's novel of the capture of Abimael Guzman, charismatic founder of Peru's vicious Sendero Luminoso terrorist/guerrilla group, The Dancer Upstairs (I strongly recommend, by the way, the film version directed by John Malkovich). (In two parts, pdf, here and here.) I talk about three differences, which are quite similar to what Dunlap says above:

First, police depend for their authority on the fundamental legitimacy of their role in society - the fact that they are perceived as the face of the rule of law and, hence, represent the extraordinary, rather than routine, intervention. The authority of soldiers, as Dunlap well puts it, is their weapon and the willingness to use it. Armies establish their "legitimacy" by killing and destroying opposition to their will. Police, by contrast, must rely, 99.9% of the time, on their legitimacy within a community, the fact that their authority is accepted by the community. Soldiers fight "enemies" who, in the pure conception of war, are enemies from another political come to do violence to yours; police deal with those who "deviate" from broadly accepted social norms within a given domestic political community.

Second, the function of police is literally to "arrest" - that is, stop and apprehend - suspects. The function of soldiers is to destroy an enemy's will to resist. They are fundamentally different things. The move to apprehend, to stop, to freeze and seize is a corollary of the fact that social deviancy within a society, even when it is horrifically violent, is not seen as "war," war upon that society.

Third, the tactics and, accordingly, weapons of police differ profoundly from soldiers. War accepts the concept of collateral damage in a way that policework does not. In preventing a bank robbery in a crowded lobby, for example, a police officer is not entitled to make a proportionality calculation that the possible dead civilians might be justified by the ability to stop the robbery. Policework accepts restraints on violence by the police in ways that are utterly different for soldiers in war. Moreover, the level of weapons systems reflect this as well; it is not "policework" if your police use mortars, for example, it is war - or, under some circumstances, terror.

These differences are fundamental to the respective roles of police and soldiers - to the fact that police have a role within society whereas soldiers in their purest conception are about the protection of society's perimeter from its external enemies.

Terrorism seems to blur these roles, for the reason that today's transnational jihadist terrorists are both enemies and criminals - enemies of our domestic political community and its constitutional order, but also criminals who pursue their war by criminal means. Policework - law enforcement - criminal law - is insufficient to deal with them because they are not just criminals but also enemies. But pure war, in the classic sense of a clash of sovereigns, is not precisely what the struggle is all about because they are not just "ordinary" enemies - "ordinary" enemies who, when captured, for example, entitled to be treated as honorable POWs - but instead also criminals, unprivileged belligerents who pursue their war without regard to the most fundamental laws and customs of war and who, because they are untethered to a state and to the defense of any particular population, feel no constraint of reciprocity in their conduct.

(I say more about the difference between criminals and enemies, and terrorists as criminals and enemies, free at SSRN here, in a 2002 law review article (pdf) - it is toward the end. I also say more about it in a very short way, at SSRN here, in an op ed in the New York Times Magazine in September 2006. And I say still more about it in an essay called "Law and Terror" in Policy Review, appearing sometime in the next couple of weeks.

Update, Sunday, October 1, 2006. Let me add a fourth. In policework, the police are "good" guys and the criminal suspects "bad" guys. In war, so long as soldiers on all sides conform to the laws of war - maintain their status as lawful belligerents - they are simply soldiers, and the law does not impute to them liability for the reasons for fighting. This, if course, is the distinction between jus ad bellum, the law governing the legal recourse to force, and jus in bello, the law governing the conduct of fighting. Ordinary soldiers are legally responsible only for the latter, jus in bello, the conduct of fighting, not the reasons why their state or society undertook war. That means that it is permissible for soldiers to treat each other as targets and shoot at each other.

With police and criminals, matters are entirely different. Police are never a legal target for criminals; shooting at police is another crime atop whatever crime started things. The assumption is that within a settled domestic society, violence is not an option and that police hold the legitimate monopoly on violence - with some exceptions such as self-defense or defense of others when there are no police around - and so police are never legitimate targets.

Why does this last, fourth point matter? It matters - more exactly, it produces many conceptual and practical problems - when it is sought to be adapted (as metaphor) to uses of force by, for example, the United Nations. The UN seeks, entirely unrealistically and indeed morally wrongly, to think of itself and its uses of force in the world as "policework." Since its overall aim, and self-conception, is to think of itself as the world's government, and the world as something gradually evolving to a unitary global society, then the UN's use of force is not "war" - and, anyway, as we all know, war is bad, the UN is good, and so of course the UN does not engage in war - but instead just what police do in a settled domestic society. Granted, it doesn't quite work out like that, and we notice than in these so-called "police actions," the forces used are in fact soldiers, the weapons used are weapons of war, not police, and the concept of collateral damage entirely accepted. Nonetheless, the conception - quite mistaken, and dangerously mistaken, in my view - is that these war-like exercises are a form of policework, albeit adapted to a global(izing) society.

And the corollary is that these police (who are actually soldiers) cannot be fought against - even though they look like soldiers, fight like soldiers, and even though you, whoever "you" are, think that they are the "enemy" on the other side, not policemen, to shoot at them is a crime, just as it would be to shoot at a police officer in a bank robbery. This clash of paradigms, war and policework, results in a practical dilemma. Countries which contribute various kinds of peacekeeping and peace enforcement troops to the UN would often like to see a rule that says it is a war crime to shoot at them. This runs counter, however, to the laws of war, which take no sides, even as between the UN and other armed forces, as to whose cause is right and whose is wrong, so long as the fighters conduct themselves properly in their fighting. The rules of war provide that a fighter who obeys the laws of war, regardless of whether he is on the good side or the bad side, benefits from the combatants privilege (I am leaving a lot of stuff aside, such as differences between internal and international wars). If you say that shooting at UN troops is a war crime, you are saying, in effect, that the laws of war take sides as to reasons for fighting.

This dilemma is not very comfortably resolved, at this point, by drawing a difference between "neutral" peacekeeping troops, whose mandate requires that they do not take sides, and peace enforcement operations, where the UN has taken a side or a cause as its own, under the authority of the Security Council, such as the first Gulf War. In the peacekeeping case, there is movement to treat targeting neutral peacekeeping forces as a war crime, whereas where the UN explicitly takes sides, then the laws of war would apply as they normally do. One of several difficulties, of course, is that what it means to be "neutral" as armed peacekeeping troops is not so very clear ...

Let me also add, responding to something said in the comments, that the deployment of the military in the War on Drugs has seemed to me a very bad long term idea, for all the above reasons. Likewise the Clinton-period view (which might, of course, make a comeback post Bush) that counterterror requires military commandos to get the bad guys - and the FBI agent on the scene to read them their rights; the combination of these two fundamentally different paradigms is a grave conceptual error about the nature of the terrorism we confront. And the long term use of the military to patrol the borders; unless we intend to shoot all the Mexicans, Central Americans and other civilians coming across the Rio Grande, the military is the wrong long term option (I understand that due to the neglect of this issue over a long time, in the short term it may be necessary).

Is spanking children a violation of international human rights law? Susan Bitensky's new book says it is

As a parent who did spank his child and thought it did her a world of good, I will be interested in Susan H. Bitensky's new book, Corporate Punishment of Children: A Human Rights Violation (Transnational Publishers 2006), arguing that corporal punishment of children is a violation of international human rights law.

It will not surprise regular readers of this blog, if there are any, to know that I view this kind of conclusion - I will defer as to the argument until having seen the book - as the kind of thing that alas gives the concept of international human rights a bad name, at least in such benighted places as the United States. It is the sort of thing that gives skeptics about human rights law fodder for years to come. (And, mirabile dictu, today, Saturday, September 30, 2006, the New York Times has a front page story on corporal punishment persisting in the nation's schools, along with a picture of junior high school principal Anthony Price, a burly African American man, holding a sizable looking paddle in his hand. Story by Rick Lyman - and forever locked behind the Wall at the NYT.)

(I would be interested to know if Human Rights Watch's children's rights division agrees with Professor Bitensky. I would also be interested in Michael Ignatieff's reaction, as he once passingly discussed the issue in the the New York Review of Books or someplace as the sort of thing that would be obviously beyond the reach of human rights law, while at the same time, Ignatieff-style, acknowledging all the many ways in which international human rights law should regulate parents in their intimate dealings with their children.)

Truth be told, I thought arguments around these issues in human rights were dead and buried years ago, when the human rights movement, faced with Rwanda, Kosovo, Darfur, and then all the issues arising from torture and mistreatment in the war on terror, etc., decided it was perhaps time to get back to basics and quit arguing about these kinds of endlessly expansionary diversions of human rights law based around the ancient "the personal is the political" axiom. But I guess I was wrong.

Additionally, I critically discuss a concept that, from the abstract, features in the book - the legal as the therapeutic - in an older paper in the Columbia Law Review that I recently posted to SSRN, here, The Therapeutic as Rights-Talk.

Here is the abstract from SSRN:

The core of this book is a detailed analysis of the status of corporal punishment of children, including so-called reasonable spankings by parents, under international human rights law. The analysis leads compellingly to the conclusion that such punishment is indeed a human rights violation, consonant with modern norms about right and decent treatment of juveniles. The book further provides a comparative analysis between the domestic laws of the fifteen nations that absolutely ban all corporal punishment of children (Sweden, Finland, Norway, Austria, Cyprus, Denmark, Germany, Iceland, Bulgaria, Croatia, Latvia, Hungary, Romania, Ukraine, and Israel) and exemplars of domestic laws in the many countries that still permit some physical chastisement of children (United States and Canada).

Because a good number of readers may be surprised to learn that this disciplinary practice has become a human rights violation, the book also presents an in-depth exegesis of the psychological evidence and historical and philosophical reasons warranting prohibition of all corporal punishment of children as an imperative policy choice. The work probes as well why, once that choice is made, it is essential to use legal bans on the punishment because they have uniquely pedagogical and therapeutic roles and give permanence to humanity's hard won understanding about protecting the young from violence and legalized violence in particular.

Are academic bloggers prepared to be quoted in the MSM?

(Welcome Balkineers - my thanks to Sandy for posting his very interesting response over at Balkinization, here. I have been trying to post the following extended comment to his post, but for some reason Blogger won't let me do it. If someone wanted to post the following comment to Sandy's post, from Kenneth Anderson, I would be very grateful. This won't mean very much, of course, if you haven't had a chance to read the original post below. My comment to Sandy is the part in red. Also, please see my response to Scott Horton's comment to Sandy's post, below as well:)

Sandy and I have a mutual admiration society, please understand - I regard him as one of the finest and morally most acute intellectuals writing in the US today; his book on torture and his new book on the constitution are simply required reading for anyone seeking to understand our political system today. Why he thinks so well of me - heck, why look a gift horse in the mouth?

So I want to be clear. I have no question whatever about the use of 'banana republic'. Re fuhrer prinzip - well, I don't think it is used inappropriately in a blog post; one of the good things about blogs is that they allow us to speak more strongly, and more emotionally, than we necessarily do in other contexts, and I dislike the idea of squelching that.

What I was concerned to point out is that, outside of the context of a blog - a blog post quoted in the Washington Post - a term like furher prinzip (which was not actually quoted in the article) to describe the US Senate sounds, well, really different. It is a different genre and it sounds very different from how it sounds in a blog post. (But I don't think that's true at all of 'banana republic'.)

The problem I was attempting to describe over at my blog post, using as an example Friday's quotation of Sandy's 'banana republic' blog post in a news article otherwise quoting actual interviews with other famous intellectuals and law professors, is what happens when language that seems okay in one genre, a blog, migrates over to another, such as a regular news story. I queried whether Sandy would feel comfortable had the reporter quoted the "fuhrer prinzip" part of the post instead - I doubted it, and as Sandy says, he shares the same feeling. So it left me wondering what happens in a world in which blog posts migrate over into regular journalism, and whether a journalist ought to check - as apparently the WP reporter did with Sandy - to see if the wording is okay.

I did add a comment, as an aside, and as a conservative reader of Balkinization generally, that it has grown more shrill of late, quite understandably, considering how momentous these issues are, if one sees one's positions losing and essentially given up by one's friends. I hope it was helpful simply to let the contributors know anecdotally that I know of administration officials who used to read Balkinization regularly, not just for its technical analysis but to understand its normative arguments, who find it simply too shrill to follow. I don't mean to suggest that the emotion that I think merits expression should be squelched - but that it does cost readers among some of the people who might, at least on some matters, be open to persuasion. I, of course, will faithfully read Balkinization every day; I'm not sure everyone else will, and I'm not sure that this form of loss will be evident from the feedback given by reader comments.

I am, I should add, coming more and more to share Sunstein's concerns about the echo chamber effect of the blogosphere and the internet generally. An editor friend from abroad came over to our house and saw the NYT, WaPo, WSJ, Wash Times, the Economist, New Republic, Weekly Standard, National Review, and the Nation - apart from suddenly understanding why I constantly miss his deadlines, and the expense, he was genuinely surprised that I would read across, so to speak, confessional lines. Despite what it appears, I'm not patting myself on the back for broad reading or spending lots of money on subscriptions; I don't think there was anything in the least unusual about that for an academic or intellectual even just a few years ago. But I do think it is becoming much more uncommon now, and that is not a good thing.

Sandy, please don't censor your impulse to give some passion to your expression in all this. If we did not have passions about this, there would be something wrong with us. But I don't know exactly what one does about passions taken from one genre and converted, not precisely homologously, into another. The expressions do not necessarily translate, and I don't know what one does about that.

(A ps to the above, Monday, October 2, 2006. It is very frustrating not to be able to post a comment to Balkinization - bad, Beta Blogger, bad, bad! If someone wanted to be kind enough to post the comment below in red to Sandy's post at Balkinization, as a comment from Kenneth Anderson, I'd be very grateful:

I read with particular interest Scott Horton's comment in which he defended Sandy's passing reference to the US Senate as fuhrerprinzip on the grounds that Balkinization readers, being erudite, learned, well read, etc., would not merely associate the term with the Nazis, but would see it as an appropriate term because it reaches back much further and beyond the Nazi regime broadly to signify a certain kind of authoritarianism which is perfectly appropriate to describe the Bush administration. Well. Supposing that is true - what I was noting in my post was not what the erudite and learned readers of Balkinization might think, but instead what happens if that bit were quoted in a mainstream newspaper story, in the NYT or WaPo. Does Scott still think the term's popular connotations irrelevant to that setting - and, recall, the point of the post was to ask, using the quotation of Sandy's post as an example, whether academic bloggers are prepared to have their words migrate from one genre to another.

In any case, while I don't doubt for a moment - I am not being ironic - that Balkinization's readers are among the most highly educated, learned, and intellectually sophisticated in the blogosphere or anywhere else, suppose we take a poll of Balkinization's readers and ask what they think of when they think of fuhrerprinzip - a long intellectual history of Middle European political authoritarianism, or ... Hitler? For that matter, Sandy is a thoroughly honest person - Sandy, were you thinking of all the various things Scott was talking about, or were you, too, thinking about Nazis? When it comes to international humanitarian law, "a field," Scott reports, "with which Ken supposedly has some familiarity," I think Fuhrerprinzip and I think Nazis. But then, given that my knowledge of the field is "supposed," perhaps that doesn't count. Maybe Scott doesn't merely think Nazis, although his discussion of it turns out to be not so much Weimar, but mostly Nuremberg and, well, Nazis. Maybe you, gentle Balkineers, think about Middle European political theories. But I bet you think Nazis. And I bet Sandy does, too - which was surely why he used it in his post.

And, again to be perfectly clear, to return to the point in my original post - I do not object to that kind of reference in a blog post. I don't mind it. It's okay by me. I might very well use it and even stronger language and references myself - I like provocation. So thanks, Scott, but in order to defend Sandy you really don't have to offer a whole intellectual history about why fuhrerprinzip is not just about Nazis and is all about alternatives to liberalism. It's okay with me even if it is a reference to Nazis. Others do object - including some in the comments to Sandy's post - but not me. I myself think it is perfectly okay for Sandy to invoke indirectly these kinds of images, and 1984, and Stalin and the Gulag, and all the rest. I may agree, I may disagree - but I don't think they are somehow beyond the pale in a blog post, a genre which accepts a certain level of passion that academic writing usually does not. It is a genre with its own internal sense of style, including a certain amount of passion, which is one reason I like it - and beyond a certain level, a reason I don't like or read the wilder parts of the blogosphere.

My question in the post - which Scott doesn't actually address - is whether Sandy, comfortable with using that kind of referrence in a blog post, would still be comfortable with seeing it quoted as a description of his view of the Bush administration in a newspaper story, surrounded with quotations from other experts who were actually interviewed and not simply blog-mined. "Banana republic" - sure. But "fuhrerprinzip"? I wouldn't be, if it were me, and my guess, and question to Sandy, was that he wouldn't be, either. And I was curious about whether the journalist contacted him directly to ask him about the quote - he did - and whether those of us who blog think there should be some kind of known, understood journalistic convention here, about quoting, about contacting for quotes, etc. I don't have a view on this - I don't often get interviewed, and anyway tend to turn them down. My question is about the migration of language from one genre, blog posts, to another, newspaper stories, and what the conventions should be for writers of blog posts and journalists mining them for material.

(Welcome Instapunditeers! and thanks, Glenn for the Instalanche. Do see the comments - they have been very thoughtful, including this very interesting response from Daniel Solove over at Concurring Opinions, here. I very much welcome comments on this question - I am a novice in the blogging world and so, for example, Dave Glazier's distinction of list serv posts is new to me. I also hope Balkineers will not take my comments below on the recent Balkinization as anything other than a cordial suggestion from a devoted reader reporting anecdotal reaction from other conservative readers.)

R. Jeffrey Smith has a reasonably objective short analysis of the detainee legislation in today's Washington Post, Friday, September 29, 2006, here. I am not going to comment on the substance of the legislation in this post, but rather on a side issue about blogging and its increasing intersection with the mainstream media - especially academic bloggers.

I was interested to see that he quoted from Sandy Levinson, writing in Balkinization, describing the bill as the "mark of a 'banana republic'." Sandy's original post is here (and also this followup, here). This quote from Sandy's blog post is mingled in with quotes that Smith presumably got in phone conversations or interviews with other people, including Harold Koh, Brad Berenson, Doug Kmiec, and Deborah Perlstein. Sandy's is the only blog post cited and is described as an internet post.

(I am, I should add, a huge fan of Sandy - as one of the most lovely people I know, as a scholar, a friend, and his books on torture and the new book on the constitution are required reading. The questiion about journalists quoting bloggers I'm trying to get at here is not really about Sandy - it just so happened that the article quoted from his blog post. It might have been Jack Balkin, or it might have been me, or anyone else.)

As with much of the language I myself use in blog posts, and that other people do, too, Sandy's language is not over the top, so to speak, yet it is stronger language, it feels to me, than that of any of the other people quoted, on either side of the issue. What interests me here is that blog postings generally tend to be much more strongly put than people - I include myself certainly - would say in an actual live or phone interview with a journalist. Presumably this is one reason why they can be an attractive source of material for journalists, besides the ease of searching them out rather than telephoning. For example, Sandy also (in the second of the 'bananan republic' posts) described the Republican controlled US Senate as operating through "the American equivalent of the fuhrer-prinzip."

Fuhrer-prinzip? This is not really such unusual language for the blogosphere, I suppose - but would Sandy have used that precise wording in an interview with a journalist intended to be quoted in the Washington Post or the New York Times? Perhaps, but I doubt it. At the same time, would Sandy anticipate having that language quoted in a MSM newspaper along with actual interviews from other people?

(Although, curiously, it is the kind of language one might actually use these days with the New York Times, since it is the kind of language that the Times is increasingly tempted to use in its own editorials. The Times editorial page is managing to perform a minor miracle in the history of literary style - to speak simultaneously ex cathedra, the voice of God Addressing Eternity, and yet in the whiny, petulant, nastified, hysterical, positive-feedback-loop cadences of the blogger-at-his/her-worst (a condition to which all bloggers, myself included, sometimes succumb, possibly even here today). But isn't it plain weird to see the most authoritative editorial voice of MSM, the Grey Lady herself, sound increasingly like a blogger - sound just like another lefty blogger, and frankly not as good at the 'rant' genre as many bloggers over at Kos on the left or Townhall on the right?)

I say this in part from having used strong language in blog posts and then being surprised - when I shouldn't be, I guess - at seeing those words quoted other places. My blog says that what I write on it is first draft, subject to mind-changing. Which is quite true - I use my blog to test out ideas and I change my mind on various topics. Geoff Corn has convinced me that he is right in saying that unlawful belligerency does not really exist in a CA3 conflict; Dapo Akande has not convinced me that he and the ICRC are right in saying that unlawful belligerency is never a crime as such but only a status under CA2, but it has certainly caused me to do more research.

But I once posted, concerning waterboarding, that I would do it to Zarqawi, if he were known to be in my hands, "in a heartbeat" in order to learn what he knew. Well. I will say flatly (just to be clear about what the difficulty with the post was, in my mind, viz., the colorful blogospheric language and not the fundamental position - I am not writing to revisit the substantive question in this post, thank you in advance, commentators) that I do not consider waterboarding to be torture per se, in all and every circumstance, and I would be willing to have Zarqawi, back when he was alive and on the loose, waterboarded if it appeared that he still had actionable intelligence that could save Iraqi lives from his terrorists - none of which, of course, could be determined "in a heartbeat." Waterboarding KSM was appropriate and right, in my view, and, in the accounts of reasonably objective journalists, such as ABC News' Brian Ross, it saved lives.

But it was that phrase "in a heartbeat" that stuck, even more than the substance of the position, because it was over the top. It attracted the warm attentions first of Marty Lederman, and then later on some writer at the Nation doing a tendentious, presume-the-conclusion piece on professors supporting torture (leaving me aside, Phil Heymann or Juliette Kayyem, "rogue scholars" supporting torture? Please.). I don't regret the substance of what I wrote on that issue. But the language was more colorful because it suggested an insouciance that was not what, on reflection, I really intended. If it were really all first draft stuff, it would be possible to say, okay, I've rethought this and this is what I mean - including that I've changed my mind, you commentators are right, and waterboarding is always torture. But the whole situation is changed when you find that your blog post is getting quoted in some magazine or newspaper somewhere. What you thought of as being first draft commentary turns into the mini-"gotcha" moment.

The political blogosphere is these days mostly an intemperate place. There are exceptions, such as the refined, respectful tone of Opinio Juris where, in a group blog with people of sharply differing political opinions, people are appropriately very careful in how they express themselves. Balkinization, where Sandy blogs, is a group blog of the like minded, and, as Cass Sunstein has noted, these blog environments tend to reinforce and spiral upwards the emotions of the group.

(Aside: Balkininzation provides some of the most useful and trenchant analyses by leading legal minds, at its best providing a fast but highly, highly informed technical read of statute such as the detainee bill and/or a genuinely profound take on a topical issue of political values, whether one agrees with the position or not, or is persuaded by the argument or not. Especially if you don't agree, it's important to read the best of what people on the other side think - and with a mind genuinely open to persuasion by a good argument. But at least at the moment, Balkinization seems to be getting more and more shrill. Sandy directed a question in a recent post to "conservative readers of this blog." It occurred to me reading it that I might soon be among the last of its faithful conservative readers; an administration official who has long read it with a genuinely open mind, appreciated its analyses and has sometimes been persuaded by its views and sometimes not, remarked to me the other day that the level of emotion and invective had started reaching the point where it made reading it just a pain in the ass - and that would be an enormous loss, as what's the point in always preaching to the converted? End aside.)

And an individual blog, like this one (where I have no idea who reads this besides undergraduates looking, so far as I can tell, for materials for term papers, possibly to plagiarize, on just war theory and Michael Walzer) tends to go over the top, to indulge the upward cycling positive feedback loop, because there is no structure of countervailing views that forces one to think about being respectful and take the other side's views into account. But as the blogosphere interacts with MSM, to become a source of material for the MSM, so that MSM feels free to quote blogged opinions, especially of famous intellectuals and scholars - such as Sandy Levinson or Jack Balkin - essentially as though their blog posts were free floating interviews, then there can be mistmatches of expectations.

This last makes me wonder whether we need some kind of developing journalistic ethic here. Normally, one feels free - as a scholar or a journalist - to quote whatever a person published in writing, without going to them in any way. But are blog posts like that? What I wrote in a recent NYT magazine piece, for example, or in the Times Literary Supplement, was carefully scrutinized by me, by editors, and it represents not my first draft thoughts, but, for whatever they are worth, my considered opinions. I can't say that is true of my blog posts - which is part of their very point - I can't even say that of this post.

Should a journalist or scholar check with a blogger before quoting a post in these circumstances to see if that is what he or she would say in a considered way, either what he or she would say in a published article or what he or she would say to a journalist in an actual interview? I don't know. I am curious as to whether Smith contacted Sandy first, before quoting him - I certainly would not think that, as our current journalistic practices go, a journalist or scholar would or should feel obligated to do so - the article identified it as a blog post, not an interview - but I wonder whether we should move toward such a convention in the future. I really don't know. But I do know that the interaction of MSM with the blogosphere, particularly the expert/academic/scholar blogosphere, in which it becomes a source of quotes, may require shifts in how bloggers view what they post.

Jonah Goldberg on the torture debate

Jonah Goldberg at NRO comments on the torture/interrogation practices/detainee debate, here. He later comments at The Corner at NRO on a form of conflation that frequently afflicts the torture debate:

The argument about "legalizing torture" misses an important point: that's not what the legalizers think they are doing. Their point is that they do not want to torture and therefore they want a definition of what counts as torture and what does not, so they know where the bright line is.

It steals a base to say that the Bush Administration wants to legalize torture because you first have to demonstrate that what they want to do is torture. I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.

I understand this all sounds like hair-splitting, but part of the point of my column was that we don't have a good terminology to discuss this stuff clearly. So one is forced to take a razor to the clumsy language we do have.

Goldberg is right in saying that the detainee debate has kicked the can down the road in refusing to say what is and is not permitted.

As I have been remarking for some time on this blog and elsewhere, when you have general agreement on a principle - no torture -but broad and deep disagreement as to what it means in particular cases, then the only decent way to proceed in a democracy is casuistically, case by case - water boarding, sleep deprivation, etc. - and through the democratic process to reach a conclusion. Where the disagreement over substance is profound, then the fall back position in a democracy is to resolve it through democratic processes. It is not resolved, however, if it does not answer particular cases. So let everyone raise their hands and vote - let the legislature, our elected representatives, vote. Let everyone know where our Congress stands, person by person, on these morally fraught questions, and let it be known precisely and unmistakably where we draw the lines between legal and illegal.

Make no mistake - I am no fan of the Democratic alternatives here (if there is one besides believing that the nation's existential problem is not terrorism, but Bush), and think that the compromise between the White House and McCain was on balance - with some ringing exceptions - better than expected. Still, speaking as a small-d democrat interested in seeing our legislature do some work in all this - well, our democratic process largely flopped precisely when it got to brass tacks that really mattered - what specific practices applied to whom by whom constitute torture? - preferring to paper over the ambiguities and difficult questions. We will pay for the failure to address the problem squarely, down the road, at compound social interest.

(I said this in short form in an opinion piece in the New York Times Magazine over Labor Day weekend that not too many people read, alas, but is available here, and will be saying so in longer form in the upcoming issue of Policy Review.)

***
I'm moving a comment into the main post - it is from Alan G. Kaufman, a Navy lawyer, LOAC expert among other things, and I'm especially pleased to say former Harvard Law School student of mine:

Alan G. Kaufman said...

I am not so sure that the debate is (or ought to be, at this point) over exactly what kinds of coercive interrogation techniques or acts constitute "torture," and which of those coercive acts or techniques we should or should not accept, as it is over what coercive interrogation acts or techniques, not constituting torture, nevertheless do amount to cruel, inhuman and degrading treatment, or outrages upon dignity, and should or should not therefore be prohibited.

Isn't the real objective here, from the administration point of view, to create a lacunae -- or leverage the lacunae I describe above -- to permit executive branch interpretation of law of war to permit coercive interrogation techniques that some would view as illegal because they are cruel, inhuman, and/or degrading?

Alan is right - I was focused on torture because it is what Goldberg was writing about. But certainly it applies with equal force to all the other controversial interrogation techniques. Whether you are talking about torture, degrading treatment, any of these categories, I won't be happy unless they are connected precisely and without euphemism to concrete practices. And I agree that the administration is seeking to exploit lacunae in the legislation to permit, as Alan says, executive branch discretion in this. Indeed, I would say it goes one step further - it wants to have its cake and eat it, too, in having discretion to interpret, but at the same time announce that there is sufficient specificity to protect US officials.

I don't actually think it can have it both ways here - if there is to be sufficient specificity about what coercive interrogation is legal, it will be sufficiently specific only if it effectively removes the executive's discretion. Otherwise, well, I at least would have a lot of concerns as a US official about what might happen down the road. My view is that people are seriously divided as to these things per torture, but also per coercive interrogations - I would guess, perhaps, that Alan and I would differ on some of these things - and in that case, legislation is not very useful if it does not get down to specific cases. The current legislation does not do that, and it will, in my current estimation, not pass muster with the Supreme Court, which will find it too clever by half. Nor does it really do what legislation on a deep moral disagreement within the populace has to do - require that legislators make clear where they stand. This still does not do that. I want to know where every member of Congress and the Senate stands on each of these things. I don't want lacunae. I want legislators to vote and everyone to know how they voted. I also think that is what the Court wants - a plain unvarnished statement from the legislature that engages in no papering over of differences.

I realize that I have not addressed the substance, but here I am more concerned about the process by which a democracy resolves issues on whose substance its members are deeply divided.

Dapo Akande responds to Geoff Corn and me on unlawful belligerency as a separate crime

Dapo Akande, fellow at St. Peter's College, Oxford U, responds with a thoughtful comment on whether unlawful belligerency is a crime in the law of war separate from any unlawful acts committed in the course of belligerency. He argues that it defines criteria to be or not be counted a POW, but that it does not define a separate crime. I've pulled his comment up into this separate post - and thanks very much for posting it. I will try to respond later, and am interested in further thoughts. Professor Akande's comment:

I disagree with Geoff and Ken's assumption that "unlawful belligerency" is a distinct international law crime or violation of the laws and customs of war when it occurs in international armed conflicts.

To say that a combatant is an "unlawful combatant" is simply to say that the person does not meet the criteria set out in Art. 4 of GCIII and that this person does not benefit from the privileges of lawful combatantcy. However, failure to meet these criteria is not by itself a violation of the laws of war. What it does mean that the person can be prosecuted for the ordinary crimes which any combatant would otherwise be prosecuted for if not entitled to combatants immunity/privilege. Thus, an unlawful combatant can be prosecuted for murder, destruction of property and other acts of violence which are lawful under the laws of war. Now, if a State were to make it an offence for a person to fight without fulfilling the conditions for lawful combatancy international law does not prohibit that. However, that would not be a violation of the laws and customs of war. It is a domestic crime but one that international law allows prosecution of.

Given what I have said above, it follows that unlawful belligerency cannot be a violation of the laws and customs of war in non-international armed conflict though states are free to prosecute for it. However, more importantly, the concept of unlawful belligerency is redundant in non-international armed conflicts as States are entitled to prosecute any combatant on the other side. There is no combatants immunity in such conflicts so their combatantcy is neither lawful nor unlawful under international law.

Finally, the US Supreme Court in Ex Parte Quirin was similarly confused on the concept of unlawful combatancy when it stated that: “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” While, as stated above, there is nothing to bar a state from prosecuting a person for acts which render his belligerency unlawful, this is not the main point of the concept. The main point is that such a person is subject to prosecution for acts which are lawful under the laws of war.

Dapo Akande, St Peter's College, University of Oxford

(Notice the copy of Henry Steiner and Philip Alston's human rights casebook on the bookshelf in the photo!)

Quick note on unlawful belligerency as a status crime under GC3, Article 4

A quick comment about status under GCIII, Art. 4, which defines persons who qualify as POWs. (I've posted part of this as a comment at National Security Advisors, too.)

There is seemingly an irreducible "group" element to Article 4(A)(2). It says that a person qualifies as a POW if he is a member of a militia or volunteer corps, provided that the militia or volunteer corps (that is, the group, not merely the individual) fulfils certain criteria.

Why the group element of the definition? What might be the rationale? The group element, considered at the most general level, deliberately rules out 'armies-of-one'. Why? Presumably as being inherently undisciplined because there is no command structure to them. Hence the requirement for commanders, group structure, someone to take responsibility for adherence to the rules of war, etc.

I have always read that to mean that - and I've always thought that the ICRC agreed - that this meant that the group must satisfy these criteria in order for any particular individual to benefit from POW protection under them. The incentive rationale for this is that much greater incentives are provided to members of armed groups to follow the war rules if there is the possibility of membership-status liability on account of the group itself even if you yourself have not individually committed any further war crime.

Thus it would be possible for an individual member to be part of a group that flunks these criteria, and so be liable as an unlawful combatant

• (i) if the group fails these tests,
• (ii) the individual is a member, and
• (iii) even though the individual may not have individually engaged in separate war crimes as part of the group. That is, the individual is chargeable as a member with unlawful belligerency in an article 2 conflict. The member is not chargeable with specific war crimes in which he did not participate - leaving aside special questions of conspiracy, aiding and abetting, etc. - but he is chargeable with the underlying status crime.

Although I've never seen any real discussion on it and not sure if there is much, the language in this section refers not to combatants, but to "members." It is arguably the case that this is a broader category that "combatant," in the formal sense of someone who takes 'active [or direct] part in hostilities'. Meaning that potentially one could be a member without having taken active part in hostilities, but still be liable as an unlawful belligerent. One could also argue, on the other hand, that 'members' here is intended to be a subset of combatants.

The first part of this post about group requirements I've long understood to be the standard view pretty plainly expressed in article 4, but maybe I've long missed something. I'd welcome any thoughts, particularly on that last point, on which I've never read commentary.

(I would also add, as a side note, that the military forces in internal armed conflicts I've monitored, especially, tended to fall into two categories, whether regular government forces or insurgents. On the one hand, you had highly disciplined forces, in the general sense, who nonetheless systematically violated the laws of war because they had been trained to fight in ways that were violative of the law - their commanders had simply decided to ignore the legalities and had trained their forces accordingly. On the other hand, you had utterly undisciplined forces in which violating the laws of war - rape, pillage, murder, generally trashing the places they went - was simply part and parcel of the general indiscipline of the forces, and usually the lack of an NCO cadre. So, for example, the Georgian forces, trying ineffectually to hold Sukhumi in 1993 against the Abkhaz insurgents, were so undisciplined in everything that they spent their time in the city ransacking the place and doing a lot of drugs and drinking, instead of digging fortifications and getting ready for the assault, which took them mostly by surprise. And then there is the Guatemalan army strategy in the early 1980s, which more or less combined the two - an otherwise highly disciplined army (at that time) relied upon being able to turn on and off its soldiers to go crazy and sack a village, and then return to discipline.)

Tod Lindberg expresses his surprise at seeing Congress negotiate and legislate in the detainee compromise

Tod Lindberg, Hoover fellow and editor of Policy Review, writes in his Washington Times column today about the astonishing spectacle of actually watching legislators negotiate and legislate in the whole detainee bill affair, in "More than Pork and Rubber," here. Regular readers of this blog, if there are any, will know that the failure of Congress to legislate a national counterterrorism policy, and the failure of the administration to bring proposed comprehensive counterterrorism legislation to it - whatever the substantive content of it - has been a theme here in recent months. So, Mr. Lindberg:

Every so often I retreat to the privacy of my cerebrum to debate the following proposition: Resolved, that the sole reason the United States remains democratic in character at the national level is the election of its president every four years, the Congress of the United States having become a dysfunctional and decadent institution. The majority of my neurons always vote to defeat the resolution, but it's amazing how close the "ayes" have come.

You could really see this over the past week or two by virtue of contrast, namely, with the debate in the Senate over the president's terrorism legislation. Already, with such terminology, the game is up: It's "the president's" legislation, as if it were up to the president to legislate. But in defense of this president, or any president, you can cite the old adage: The president proposes, Congress disposes. So why shouldn't the president show up on Capitol Hill with his draft legislation in hand a few weeks before an election, when his leverage is at its highest, and tell the august members of the House and Senate to "dispose" by approving what he wants without alteration, lest they face the political consequences?

The contrast came with the decision of Republican Sens. John McCain, Lindsey Graham and John Warner to take a different approach from what the president had in mind. I don't want to get into the substance of the difference or the question of which side I think had the better argument. I want us instead to behold and contemplate the odd and confusing spectacle of three senators acting like they had some freakin' constitutional mandate to decide what laws to pass.

Whoops, wait, that actually is their constitutional mandate. They're legislators.

And what a strange spectacle it is these days to see legislators legislating. Most of the media commentary could barely make sense of the phenomenon. How often did you hear something along these lines? "Republicans remained divided today over President Bush's terrorism legislation." As if it were the mission of Republicans in the executive and legislative branches to put aside their quaint constitutional roles and instead reach agreement in advance about that for which they will march in lockstep.

From the respective ideologico-partisan communities of each party, the premisewas the same, though of course the response varied accordingly. Conservatives were hopping mad at Messrs. McCain et al. for defying the president. Progressives (OK, liberals) were delighted at the infighting among Republicans. It is by now a time-honored Washington axiom that when your political opponents are fighting among themselves, you should get out of the way of the damage they are doing to their cause.

Oh boy, said the lucky Democrats, we can avoid political damage and embarrassment on this sensitive issue by letting Mr. McCain carry the opposition to Mr. Bush. Oh brother, said the bitter Republicans, here we are all set to inflict political damage and embarrassment on the Democrats and Mr. McCain blows it. And then what should happen, mirabile dictu, but Messrs. McCain et al. actually manage to cut a deal with the White House. Aaiiee, Democrats are caught on the horns of the dilemma of sticking with their praise of Mr. McCain for standing up to Mr. Bush and going along with him, or switching over to opposition having already ceded that the middle ground is where Mr. McCain was. Republicans are caught between their support for Mr. Bush then (contra Mr. McCain) and now (with Mr. McCain).

Why it's all perfectly stupefying, until you take into account that what actually appeared on the scene this September was that rarest of birds, the legislative process. Mr. McCain et al. weren't staking out a position of opposition to Mr. Bush. They were trying to reach an agreement with Mr. Bush. Their goal was legislation that addressed their concerns and that Mr. Bush would sign. This is unusual activity only if you think the jobs of Congress are A) to serve as a rubber stamp for what the president proposes; and B) to pass lots of pork-larded, lobbyist-written, special-interest-friendly laws designed to minimize the remote chance that they will ever be voted out of office.

Now, to be sure, most of the time A) and B) about cover the scope of congressional activity, not counting carping from the sidelines for political advantage. But for some members, such as Mr. McCain, Congress is still a place for deliberating over what the law should be. He sees himself as a legislator. And although the White House, too, seems to prefer (or at least to have gotten used to) a Congress made of pork and rubber, given the sudden appearance on the scene of a legislator who wants to legislate, lo and behold, it's deal-making time.

Imagine that. Congress acting like the legislative branch. The next thing you know, members will take it upon themselves to address pressing national problems on their own initiative, and not just when the president jams something at them and/or, as in this case, when the Supreme Court tells them they have to.

Female guards in male prisons in the US - a comparison with detainee conditions?

One of the scenarios, commentaries have said, in the military tribunal negotiations that caused McCain, Warner, and Graham to back off of certain demands was the concern that a judge might decide that the mere fact of a female interrogator interrogating a Muslim male detainee constituted "degrading treatment" or some other vague standard that carries severe criminal penalties as a war crime under the War Crimes Act. Human rights organizations have indeed taken this position and others similar under human rights standards and laws of war. As Byron York put it at NRO, quoting conversations with a source present at the negotiations:

The McCain/Graham/Warner camp realized that the White House had a point when it raised the possibility that "a liberal jurist would say that a female interrogator of a Muslim male is a 'grave breach.'"

In light of the fact, also, that, at least at some points in the negotiations over the detainee legislation, the McCain Amendment, with its references to standards in various Constitutional provisions as a "floor" for treatment, I was curious as to how US domestic law views these questions of privacy, dignity, and so on in the context of cross-gender prison supervision.

I am not, of course, suggesting that there is a direct relationship. Insofar as one relies on human rights conventions and laws of war for standards such as "degrading" treatment, and insofar as one is dealing with detainees and not prisoners convicted in a US court and remanded to the US prison system, then there is no legal link between the standards. There are many reasons why the international standard, once taken beyond the vagaries of "degrading" treatment, might be higher than that of US prisons, and of course the standard in US prisons might simply be too low. For that matter, many people - particularly foreigners, I think - are quite astonished and repelled on privacy and dignity grounds that US law permits cross gender supervision in prisons - and particularly at the idea that employment rights, especially those of women seeking to work in male prisons, can trump prisoner privacy and dignity concerns.

So, while not asserting in the least any direct legal link, I asked my able research assistant Lisa Radigan to do a little research for me on the question of US prison standards, and the clash of privacy and employment civil rights. I recalled that one of my WCL colleagues, Professor Brenda Smith, has done extensive work, both scholarly and practical, in this area. She has written the definitive paper on the subject (and which argues that US standards in this area are in violation of human rights law) (see notes below). I am posting below the text of Lisa's short research memo to me, in case anyone is interested in how these gender issues are currently viewed in US prison conditions litigation (thanks Lisa!):

***
The short answer is that cross-gender supervision of prison inmates is allowed in U.S. prisons under U.S. law. Inmates typically raise § 1983 claims alleging violations of either the Fourth or Eighth Amendments. Courts are much less likely to find civil rights, constitutional, or other violations if the situation is female guard/male inmate. Under the Fourth Amendment, both male and female inmates challenge actions by opposite-sex guards as either unreasonable searches or under the more general right to privacy. Courts, however, are extremely deferential to the needs of prison administrators and most Fourth Amendment challenges by male inmates have failed.[1] Female inmates are much more likely to bring ( and win) Eighth Amendment claims arguing that male guards can exacerbate past traumatic experiences that causes the conduct to rise to the level of cruel and unusual punishment.

Professor Brenda Smith’s article outlines three separate areas of litigation arising under the Fourth Amendment: (1) infrequent and irregular cross-gender viewing; (2) frequent and direct cross-gender viewing; and (3) cross-gender pat searches. Generally, courts have upheld infrequent and irregular cross-gender viewing as reasonable under the Fourth Amendment.[2] Additionally, the vast majority of U.S. courts have held that clothed pat searches by female guards of male inmates do not violate the Fourth Amendment.[3]

Her article notes that there is considerable disagreement among the circuits about the constitutionality of cross-gender guards viewing inmates while naked (or nearly naked) and when there was prolonged viewing of genitalia. For example, the Ninth Circuit held that female guards observing male inmates while they showered, used the toilet, or were strip-searched did not violate the Fourth or Fourteenth Amendments.[4] In contrast, when male inmates were detained overnight without clothes in the presence of female guards, a federal court in Michigan held that this violated the inmates’ Fourth Amendment right to bodily privacy because of the extended period of time and full nudity of the inmates.[5]

Courts generally choose to resolve most female inmate initiated claims against male guards under the Eighth Amendment. In order to uphold an Eighth Amendment claim the court uses a two-prong test: (1) the conditions of confinement must be sufficiently serious; and (2) the defendant must have acted with deliberate indifference to inmate health or safety.[6] Courts are generally less favorable to male inmates’ Eighth Amendment claims against female guards than female inmates against male guards.[7]

Title VII also plays a major role in courts’ treatment of cross-gender supervision. Under Title VII employers may not discriminate based on sex unless there is a bona fide occupational qualification (BFOQ). In the non-prison setting (for example, male nurses and female patients), privacy trumps employment rights. This is not the case, however, in the prison setting because, courts argue, there is a diminished expectation of privacy in the prison context. These arguments are also up against the backdrop of women’s historical exclusion from entry into the prison guard system and the overarching governmental interest in remedying this past wrong. Similar to the constitutional claims above, courts have been inconsistent in applying Title VII to male versus female prison guards. Thus, male inmates privacy rights generally give way to women’s employment rights.[8]

The bottom line is that there is considerable jurisprudence upholding cross-gender supervision of inmates. Professor Smith’s article, however, does argue that cross-gender supervision is not in line with international law.[9] She points to international law focusing on the dignity of each person (citing the UDHR, ICCPR, and UN Convention Against Torture). She also notes that limiting, but not excluding, women (or men) to positions that do not abridge basic privacy rights can solve Title VII problems.

Secondary Materials:

Brenda V. Smith, Watching You, Watching Me, 15 Yale J.L. & Feminism 225 (2003).

Teresa A. Miller, Sex and Surveillance: Gender, Privacy & the Sexualization of Power in Prison, 10 Geo. Mason U. Civ. Rts. L.J. 291 (2000).

Human Rights Watch Report, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, 1996, available at http://hrw.org/reports/1996/Us1.htm.

Amnesty International Report, Not Part of My Sentence: Violations of the Human Rights of Women in Custody, 1999, available at http://www.amnestyusa.org/us/document.do?id=D0F5C2222D1AABEA8025690000692FC4.

Department of Justice, Bureau of Justice Statistics Special Report, Sexual Violence Reported by Correctional Authorities, July 2006 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca05.pdf.

Notes:

[1] See, e.g., Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997) (finding there was no Fourth Amendment privacy protection for male inmates against female guards performing body cavity searches on male inmates); Johnson v. City of Kalamazoo, 124 F.Supp.2d 1099 (W.D. Mich. 2000) (holding that stripping detainees to their underwear and holding them for a period of time in the presence of female officers did not violate a male detainee’s Fourth Amendment privacy expectation). But see Forts v. Ward, 621 F.2d 1210 (2nd Cir. 1980) (holding that no Fourth Amendment violation existed when male guards were allowed to view sleeping female inmates so long as the female inmates were clothed).

[2] See e.g., Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982) (holding that limited frisk searches by female staff of male inmates was allowable).

[3] See Rice v. King County, 243 F.3d 549 (9th Cir. 2000) (concluding that clothed pat downs of males inmates by female guards is generally permissible).

[4] Grummet v. Rushen, 779 F.2d 491 (9th Cir. 1985).

[5] Wilson v. City of Kalamazoo, 127 F.Supp. 2d 855 (W.D. Mich. 200).

[6] Farmer v. Brennan, 511 U.S. 825 (1994).

[7] See e.g. Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997), cert. denied, 522 U.S. 852 (1997) (holding that Eighth Amendment claim met neither prong of the Eighth Amendment test where the inmate alleged cruel and unusual punishment based on repeated visual body cavity searches during which female officers "pointed at" him and "joked among themselves" at his expense, and where female staff joked and pointed at Somers while he showered); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (finding no Eighth Amendment violation in female correctional officer's comments to a male inmate regarding the nudity of male inmates).

[8] See, e.g., Griffin v. Michigan Dep't of Corr., 654 F. Supp. 690, 703 (E.D. Mich. 1982) (disposing of male inmate privacy noting that "[a]ny contention by Defendants that they are entitled to the Title VII BFOQ exception on the basis of the inmates' right to privacy argument is without merit. Inmates do not possess any protected right under the Constitution against being viewed while naked by correctional officers of the opposite sex”); Harden v. Dayton Human Rehabilitation Center, 520 F. Supp. 769, 774 (S.D. Ohio 1981) (concluding that female plaintiff had right to work as Rehabilitation Specialist in all male corrections institutions).

[9] U.N. Standard Minimum Rules for Treatment of Prisoners, Rule 53(B)(2), U.N. Doc/A/CONF/6/1annex I A (1956), amended by E.S.C. Res. 2076, 62 U.N. ESCOR, Supp. No. 1, at 35, U.N. Doc. E/5988 (1977).

Geoff Corn on why unlawful belligerency is not a separately charged tribunal crime

Geoff Corn gives a generously thoughtful response to the question in my post below, as to why the military tribunal bill does not create a separate crime for unlawful belligerency but, instead, simply defines crimes that are predicate acts of unlawful belligerency, such as murder, rape, etc. (I have moved Geoff's remarks from the comments into this new post.)

If I understand Geoff well, in the setting of a non-international armed conflict - a common article three conflict - unlawful belligerency is not itself a violation of the (international) laws and customs of war, although it might and probably is a violation of the state's domestic law in which the armed conflict takes place. I agree with Geoff that I'm not aware of any precedent finding a participant in a civil war guilty of a violations of the laws and customs of war as such for unlawful belligerency (I've never looked through the Yugoslavia case law on this, but I would guess it would be the same). And it makes sense in the non-international armed conflict circumstances - if it were a crime in non-international armed conflict, then everyone who takes up arms would automatically be in violation of an international law rule. Whereas we normally assume that international law is silent on the subject, and that domestic law carries, including prohibitions on rebellion, insurrection, etc.

Another way to put this, perhaps, consistent maybe with Geoff's earlier post that I've put up on this blog, is that you only get to Article 4's definitions of a combatant if you are an Article 2 conflict. CA3 is self-contained, and just as it contains no reference to grave breaches, likewise it contains no definition of legal or illegal combatancy. On this theory, then, if you commit certain acts, you have (criminally) violated CA3, but not in virtue of having fought even as a member of a group that fails the Article 4 tests of adherence to the laws of war, responsible commander, carry arms openly, etc.

But the one question I would have for Geoff is about these requirements under Article 4. If it is the case that you can't be an unlawful belligerent - of course you may commit specific crimes against the laws of war, but you can't be defined as an unlawful belligerent punishable as such because you are outside the reach of Article 4, to which you only get via Article 2 - what about the specific requirements of Article 4. They are treated in Article 4 as definitional elements required in order to achieve the status of legal combatant entitled to the combatant's privilege. And in an international armed conflict, if you fail to meet them but then undertake direct participation in hostilities, then you are an unlawful belligerent.

But in that case, what about not carrying your weapons openly, not wearing visible emblems, fighting with a group that systematically violates the laws of war, etc. - are those separate violations of the laws and customs of war, even for participants in a CA3 conflict, separate from their role in the criteria of defining a combatant in an international armed conflict? Could one separately charge those as crimes in themselves in a Common Article 3 conflict? I believe that one can, and that it is consistent with the reason why they are featured as definitional elements of Article 4 - because they are crimes that are indicative of a systematic failure to follow the laws of war. Article 4 has them because they are already customary law crimes. Geoff, am I right about this, or missing something about CA3?

I particularly agree, by the way, that if unlawful belligerency were automatically a crime in a non international armed conflict, the asymmetry would create very undesirable distortions in incentives and reciprocity in actual fighting.

Here is Geoff's comment:

Why is it not a defined offense? I suspect that this is simply an efficiency decision. It is likely that once the proponents of the commissions realized that offenses would be statutorily defined, and subject to trial by commission by statute, they decided it was easier to just criminalize the underlying conduct and not the status. Plus, I am not sure that there is total consensus that being an "unlawful belligerent" in the context of a non-international armed conflict is a distinct offense in violation of the laws and customs of war.

I have struggled with the "offense" of unlawful belligerency in the context of a non-international armed conflict. I have come to the point where I am just not ready to concede that this is indeed an international law "crime" in violation of the laws and customs of war.

I don't dispute that fighting as an unlawful belligerent is a settled violation of the laws and customs of war resulting in criminal liability in the context of an international armed conflict. However, it seems to me that this criminal liability creates a deterrent that reflects symmetry with the benefit of combatant immunity derived from fighting as a lawful belligerent in such a context. But because it is essentially impossible for a non-state actor to be a lawful belligerent in a non-international armed conflict, it seems to me the deterrent symmetry of the law is inapposite to such a context.

I realize that such a non-state actor can’t be a lawful belligerent in a non-international armed conflict. But I think all this means is that such an individual is incapable of asserting the privilege of combatant immunity that is derived from such a status. As a result, the non-state “warrior” is liable for any domestic law crime resulting from his conduct in battle. Any valid assertion of domestic jurisdiction could reach such an individual. But this does not necessarily mean that the individual has violated the laws and customs of war simply by participating in a non-international armed conflict.

I am not aware of any case involving a conviction for violating the laws and customs of war based on a charge of merely participating in a non-international armed conflict. The law of war violations alleged against non-state actors in such conflicts have been based not on mere participation, but on acts that violated specific law of war rules (like common article 3). In addition, such individuals have routinely been prosecuted for their actions that did not violate the laws and customs of war, but did violate domestic law. But again, subjecting such an individual to prosecution for violating domestic law is a result of the lack of combatant immunity, and not an indication the participation in the conflict was an independent war crime.

Perhaps I am overlooking precedent, but it seems to me that simply extending the “unlawful belligerent” precedents from the context of international armed conflict to non-international armed conflicts does not sufficiently validate this offense. I question whether lack of status as a lawful belligerent in a conflict where it is impossible to be a lawful belligerent is itself an offense in violation of international law, as opposed to just a status that prohibits an assertion of immunity from domestic criminal jurisdiction.

Bobby Chesney responding to question re CA3 and CA2 in Hamdan

Bobby Chesney over at National Security Advisors has a post responding to my previous post on Geoff Corn's analysis of Common Article Three, here. See the comments to the post as well. I'm rereading Hamdan, and will post more here once I've had a chance to think through Bobby's comment and Stevens' language. Thanks, Bobby - I think this is an undiscussed aspect of Hamdan, whatever folks conclude about CA3 and CA2 in it, that has been underappreciated in both Hamdan and the current detainee bill.

Also, while I'm thinking about it, please read Bobby's important post about the multiple conflicts conceptually underway from a LOAC standpoint - Al Qaeda, e.g., separate from the Taliban, to whom the administration applied CA2 analysis as a high contracting party (despite the fact that it had no UN seat, and was recognized by only Pakistan, Saudi Arabia, and Yemen, if I recall correctly, so there was actually a strong argument that it flunked the factual test of being a "government," but anyway). The differences matter, of course, because of differences of treatment under CA2 and CA3. Of course, falling under CA2 does not get you full POW status, because you might still flunk Article 4 tests and turn out to be an unprivileged belligerent. But the analysis turns very different corners depending. I'll try to have more to say, but I gotta go to bed.

Except one quick note - I was curious - concerned, more exactly, that the detainee bill list of substantive crimes has all the crimes that are predicates of unlawful belligerency - murder, rape, etc. But it does not make unlawful belligerency itself a crime to be tried and punished. More on this later - but I'd be interested in views on why it is not one of the crimes to be tried - I would have thought, first, that trying this as a separate crime is part of customary international law, and that failure to do so is a step backwards, as opinio juris and state practice. Second, it seems to me important as a policy to punish not just the bad stuff resulting from unlawful belligerency, but to underscore that in a world beset by terrorism - private armies, nonstate actors - unlawful belligerency as such will be punished. I don't really understand the rationale for leaving it out, and would welcome any thoughts.

I also want to strongly recommend Bobby's new paper on this subject - Hamdan and deference, on SSRN here. I'm about halfway through it and it is excellent. Required reading for anyone looking to get to the heart of the law of war, foreign affairs, and national security law issues in Hamdan.

Geoff Corn commenting on relationship of CA2 and CA3

For those of you who follow the LOAC technicalities, Bobby Chesney at National Security Advisors put up a useful quick guide to the compromise detainee bill, and in the course of that discussion asked whether the narrowing language of the bill could be seen to put the US in violation of its GPW article 129 obligation to enact penal legislation re the conventions.

Geoff Corn responds in one of the comments that article 129 requires the condition of an international armed conflict, under CA2, not what Hamdan informed us that we have, under CA3.

This point, it seems to me (and maybe seems to Geoff), is both correct and has broader application. Viz., I think a lot of people out there, possibly including people who drafted this compromise legislation, assume that articles of the conventions generally apply without thinking that they only apply if you have a CA2 conflict. Such as article 129. Such as article 130. I do believe a lot of people - maybe even some of the Justices in Hamdan - assume that if you call it a CA3 conflict, you get CA3 plus a bunch of extra things. Things that in fact may only apply if it is an international armed conflict. Even things like the definition of a protected person. If it is not an international armed conflict, then you don't get to the definition of protected person in the convention generally. Put another way, CA3 is entirely self-contained, which is why it is correct to use the famous description "the convention-in-miniature." Which is to say, it is a sword that in some sense cuts both ways. It gives you some things, but cuts you off from others.

In addition, as Geoff says, the concept of grave breach is not one found in the text of CA3, and you can't work back to it from the grave breaches provisions of the broader convention. Yes, there are specific things stated in CA3, but they are not covered by the penal provisions of the conventions, including the extradite or prosecute provisions. Thus, when the compromise legislation talks about defining grave breaches, it is really (and confusingly) creating a domestic law concept that does not have a true international law homologue - essentially it is merely an analogue to how one might understand language in CA3. But it is not a true homologue, in the sense that Article 129 requires a domestic law enactment to cover precisely x, y, and z points. I would have preferred that the compromise language use language other than that of "grave" breach, because of the fact that "grave" breach is a concept arising solely, as Geoff says, out of articles dependent for their force upon CA2, not CA3.

Here is Geoff's comment to Bobby's post:

Is it actually possible to have a "grave" breach of common article 3? I don't think so, at least not in the legal sense. It therefore seems that modification to the WCA that reduces the scope of criminal liability for violations of common article 3 simply cannot implicate "prosecutre or extradite" obligations for grave breaches.

A grave breach requires the violation to be committed against a "person or property" protected by the Convention. Each Conventions defines who/what is "protected". These definitions always require one common element: international armed conflict pursuant to the meaning of common article 2. Perhaps it was simplistic, but when I used to teach the GC's at the JAG School I used to emphasize that you can't "reach" the articles defining who/what is "protected" without first passing through the conduit of common article 2. Common article 3 can't get you there, because common article 3 is not a conduit to application of any other articles of the Convention!

This was a key aspect of the Tadic decision by the ICTY. Part of that case included a determination that the allegations that Tadic committed "grave breaches" were invalid because it was impossible to commit a grave breach during a non-international armed conflict.

While connecting this term to violations of common article 3 is obviously intended to suggest that such violations fall into the "grave" and "simple" categories, it does not reflect the precision of the Conventions. And, while there are certainly plenty of reasons to object to the narrowing of WCA criminal liability for violations of common article 3, I don't think violation of Article 129 of the GPW is one of them.

I had a thought vaguely like this in an earlier post, here, discussing not detainee legislation, but Hamdan, but I had not thought it through and I don't think all of it is right - anyway, Geoff's comment tells me that I was headed inchoately in the right direction! This is what I wrote in the earlier post, a comment on Hamdan:

Analytically questionable or not, the Hamdan decision applied Common Article Three, however, not because it made a policy decision that conflicts not covered by Article 2 would be covered by Article 3, but because it made a (dubious) factual characterization of the nature of the armed conflict - viz., that it is a war "not of an international character occurring in the territory of one of the High Contracting Parties." The finding - that it is a war "not of an international character" - has, however, other legal consequences under the Conventions that perhaps the Court considered, perhaps not. Certainly the press commentary does not seem to have considered it. Viz., if we are dealing with an armed conflict "not of an international character," then it is not an international armed conflict. And if it is not an international armed conflict, then (so far as I can tell on an initial read) nearly all of the rest of the Geneva Conventions do not apply to these detainees, because the rest of the Geneva Conventions apply on their terms only to international armed conflicts.

Look at I Geneva, article 2. The Convention applies to armed conflicts "between two or more High Contracting Parties." But the Court has said it is not an Article 2 conflict. Since, according to the Court, we are not dealing with an international armed conflicts on Article 2's terms, then (nearly) all the rest of the Conventions, save for the special provisions of Common Article Three (and a few other universal rules, such as the Martens Clause), are inapplicable here. They are all applicable, according to the text of the Conventions, only in the case of an Article 2, international armed conflict. Does this make any difference? Maybe the Court, all the various lawyers involved, and all the press people have long since absorbed this. But I sure don't have that impression reading the press reports of the last couple of weeks, including the Washington Post and New York Times today.

Consider, for example, all the endless wrangling over whether detainees are entitled to hearings under III Geneva, article 5, to determine whether or not they are entitled to POW status. How much ink has been spilled in that debate? But Article 5 is not brought into play by Common Article Three, which is limited on its own express terms to be the minimum that a party to a conflict "shall be bound to apply." On the contrary, even Article 5 and its much debated hearings only arise in the case of an international armed conflict. (There is indeed a standard, discussed at length below, of what someone is entitled to in terms of judicial procedure under Common Article Three; it is the customary law provision stated by Article 75 of Additional Protocol I; see below.)

Likewise, all the questions of the detailed treatment of detainees as POWs. How much ink has been spilled by arguments that all these detainees must be either POWs or civilians under IV Geneva - the position of the ICRC is that you must be one or the other, there cannot be a person without a status. The reply to that has always been, well, sure, an illegal combatant has a status: that of combatant who is not a civilian under IV Geneva by reason of having taken direct part in hostilities but who has acted as an illegal combatant, someone who has taken part in hostitilies but had no legal entitlement to do so. But that debate is rendered moot by the characterization of the conflict as "not of an international character," because all that any participants or civilian detainees are entitled to is found (with certain narrow additions such as the Martens Clause) in Common Article Three, not discussions over the definitions of civilians or POWs under the rest of the Conventions.

Common Article Three, in the long standing ICRC literature, has always been regarded as the bare minimum of humanity in war, nothing more - sometimes referred to as the "convention-in-miniature."

And to that we might add the fact that CA3 applies equally to insurgents in a civil war as well as governments, there is a question as to what such terms in CA3 about "regularly constituted courts," which featured so large in the Hamdan opinion, mean if the standard is one that is, as a practical matter, is to be met by both government in a civil war as well as a struggling, irregular insurgency. If both are to meet the same standard, then what counts as a regularly constituted court is nothing as tony and glorious as the Hamdan majority seems to think it is. In fact, it is nothing less but nothing more than what PI, Art. 75 says it is - again, from my Hamdan post:

The Stevens opinion in Hamdan tries to give a literal reading to the words of Common Article Three's language prohibiting the "passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilized peoples." But this passage has a long history and meanings that are found in its history, which may or may not be reflected in the Webster's definitions of the terms. It was, after all, about preventing summary execution. No one ever imagined it to be about giving detainees in civil wars all the protections of a regular court - if for no other reason than that its terms apply to both government forces and insurgent forces. The insurgents are likewise supposed to provide a "regularly constituted court" to try offfenses such as spying - Common Article Three is not merely an obligation of the government in a civil war, but instead an obligation on all parties to the conflict, state and non-state.

But no one would imagine that courts of insurgents satisfying the requirements of Common Article Three would thereby have all the protections of fully constituted, fully functioning government courts in a peaceable state. One cannot read Justice Stevens' opinion and believe that he was thinking of a standard of civilized judicial guarantees applicable by both governments and rebels. On the contrary, he was thinking, surely, only of a standard drawn from what one might expect of fully formed governments - a much, much higher standard, but almost certainly not the one contemplated by Common Article Three, for the reason that such a standard would never be unitary and reciprocal as between insurgents and governments. Whereas the language of Common Article Three is unitary - nothing about it applies differently as between government forces and insurgent forces; all are treated simply as parties to the conflict with the same legal obligations.

This is one of the many reasons I believe the US would have done better to have acknowledged the Geneva Conventions and not fought it, back when it was the Gonzales White House Counsel's office. It would have led, I believe, to routine Article 5 hearings followed by a finding of unprivileged belligerency, the failure to secure GPW protections, detention, and finally hearings on unprivileged belligerency and associated crimes the minimal floor for which would be set by article 75 - all, that is, under an established framework of international law (set out more fully, here). I say more about the "unitary" standard in CA3 here, also here, and Anthony Dworkin of Crimes of War responds with a different view, here.

I would be very interested to get reactions from Bobby, Geoff, Anthony Dworkin, Mike Newton, and anyone else knowing something about LOAC who wanted to weigh in. It does seem to me that the way in which Hamdan, by making a finding that in fact the conflict is a CA3 one, nixes the CA2 route and all that depends upon it, has considerable relevance for the future for what rights in LOAC are thought to apply, at least insofar as American authorities are concerned.