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.

Julian Ku, Marty Lederman, et al. on Congress's ability to reverse Hamdan

Quick note - back when this discussion was about the Bush administration's military commissions bill, before the whole compromise discussion with Senators McCain, Warner, and Graham arose, Julian Ku (pictured) wrote at Opinio Juris, here, on the question of Congress's ability to reverse Hamdan. Marty Lederman responded very substantively in the comments. I've noted it before, but wanted to recall it now that discussion has moved on to the new "compromise" bill. If one were going to launch an attack in the courts on the compromise bill, how would one proceed? The compromise bill has a certain tension between what it says is Congress declaring to be domestic law under the War Crimes Act while also declaring that what it says is domestic law satisfies US obligations under Common Article Three. Is there sufficient tension there that it could be exploited for a legal attack on the grounds that Congress had purported to interpret Common Article Three, whereas a court is entitled to make its own interpretation of the treaty, rather than simply enacting a last in time statute? The response might be, well, the bill also says that the Geneva Conventions do not allow any private right of action; a court is merely interpreting customary international law, of which Common Article Three is also a part. Common Article Three, as part of the Geneva Conventions generally, is recognized both as treaty law and as customary international law; the United States does not dispute this. The response, presumably, is that the bill prohibits the use of foreign or international sources of law as a rule of decision; a court might respond that it is not using international sources of law in interpreting CAT qua customary international law, because customary international law is in fact part of US law. Mind, this seems to me entirely far-fetched, but I raise it because it does seem to me that the language of the bill introduces perhaps unnecessarily, from the standpoint of protecting its reception in the courts, a tension over the role of Congress's statutory enactment and interpreting Common Article Three. Or does it? I will go back and read Marty's comments to Julian's post again. (This is at section 7 of the compromise bill, btw.)

Happy new year!

... to those celebrating Rosh Hashana.

The NYT chart to the detainee compromise

And not behind the Wall! Here. (Although the chart should read "Cruel or inhuman treatment," rather than "Cruel and inhuman treatment.")

What McCain et al. and the administration share - Jonathan Rauch one more time

I've mentioned Jonathan Rauch's National Journal column earlier as the best of the "long view" analysis of the detainee compromise. On reflection, thinking about the reporting in the papers on the compromise, and the unedifying and unenlightening debates over who won and who lost, it's worth pointing to something Rauch said (emphasis added):

The differences between the proposals were fairly important, but what was really momentous was their similarity. On several fundamental points, a consensus has taken shape.

First, torture should be legally off-limits, period, regardless of circumstances. Hardly anyone says otherwise.

Second, some kind of special and secret system for detaining and interrogating high-value terrorism suspects is justifiable and necessary. In a statement on September 6, Sen. Jay Rockefeller IV of West Virginia, the Democratic vice chairman of the Senate Intelligence Committee, said, "I support the continuation of a CIA detention and interrogation program, but it must be operated in a lawful manner." No prominent Democrat, or Republican, was heard to disagree.

Finally, general agreement exists that the central purpose of a detention and interrogation system is to prevent terrorism, not to prevent torture. That point may sound trivial, but it is not: Many human-rights advocates believe that the foremost responsibility of any detention system is to treat detainees humanely. On Capitol Hill, both parties reject that view. In its way, this is a seminal decision.

I am not so sure as Rauch that most Democrats in fact go along with those propositions, although I think he is clearly right that McCain, et al., and Republicans and many Democrats do. We have not yet really heard from the Democrats on these issues, and in all likelihood will not until after the midterm elections. And we will hear from them in quite different postures, come January, depending on whether Democrats are a majority or minority party. However, I share Rauch's own conclusions about detainee policy, particularly his closing point about Congressional oversight and accountability, which is better put here than anywhere else I have seen:

Is it the right decision? Anyone who tells you the choice is easy isn't thinking seriously. To claim, as some people do, that coercive interrogation doesn't work contradicts common sense, as well as the Bush administration's unqualified insistence that the CIA's "alternative procedures" have already thwarted terrorist attacks and saved lives. "Many interrogators," reported the Los Angeles Times this month, "privately acknowledge that coercive methods that stop short of torture have proven effective in Afghanistan and Iraq." I believe them.

To use coercive interrogation as part of everyday intelligence-gathering would certainly be unacceptable. Even the occasional and careful use of rough methods risks tarnishing America's image and diminishing the country's power to lead by example. On the other hand, if making a Qaeda leader stand naked, depriving him of sleep, or flashing bright lights at him could prevent a major terrorist attack, it would seem immoral to put those methods off-limits, and perverse to call them war crimes. Surely the rights of potential terrorism victims count no less than the rights of detainees.

In any case, if a law bans the use of "alternative methods" even in the direst circumstances, it will succeed only in driving those methods underground. "Any president, Democrat or Republican, faced with really frightening, bone-chilling threat reports and credible claims that he can stop bad things from happening, is going to be very hard-pressed not to push his powers to the full extent of the law," says Jack Goldsmith, a professor at Harvard Law School and a former official in the Bush Justice Department. Responsible law-making respects not just human rights but also human realities.

My view is worth no more than yours or anyone else's, but here it is: The law should leave room for exceptional recourse to "alternative" interrogation techniques, while making sure that their use is genuinely exceptional. On that score, both the Bush bill and the Senate alternative improved on the post-9/11 Bush regime, under which the president made up the law as he went along and no one could say boo about it; and both improved on the Supreme Court's Hamdan regime, under which almost any sort of rough interrogation, however necessary, might be judged a war crime.

Both bills, though, made the same mistake: While concerning themselves quite properly with legality, they omitted accountability.

Years ago, Congress grew unhappy with the CIA's habit of secretly supporting coups and assassinations. But Congress was smart enough to know that covert operations were a fact of life and that politicians, not judges and juries, are best equipped to evaluate them. So it demanded accountability by requiring that covert operations be disclosed to Congress. The president must make a written "finding" that explains to the Intelligence committees why a covert operation is necessary, what he proposes to do, and who will do it-in advance of the operation except under "extraordinary circumstances," and promptly even then.

The result is that administrations think twice about any operation they would have trouble defending on Capitol Hill. Congress has both the opportunity and the responsibility to squawk if the CIA goes too far. Not least important, a congressional sign-off ensures that the CIA is not hung out to dry if an operation fails or proves unpopular.

The system works, and, with some adaptations, would work just as well for coercive interrogation. If the need to water-board a senior Qaeda operative is compelling, the president should be willing to make a finding that tells the Intelligence committees what the government needs to do and why. If the committees object, chances are the public would, too.

The administration says, "The chairs, ranking members, and majority and minority staff directors of the Intelligence committees were fully briefed on the interrogation procedures" as the CIA created its system in 2002. A Senate staffer confirmed that the program "was properly notified to the committee," though Wendy Morigi, a spokeswoman for Rockefeller, said that he "was denied documents and information that we needed to fully evaluate the program."

Voluntary blanket disclosure is good, but it is no substitute for legal assurance that the president and Congress know and approve of every particular case of coercion. To keep everyone honest, I would add another layer of accountability: Every so often, the government would report to the public on how many people it roughed up over a given period, in what fashion, and why. Even with sensitive particulars redacted, a general description would force politicians to confront the public. More important, it would force the public to confront its conscience.

Coercive interrogation is a form of deliberate abuse that treats human beings not as ends in themselves but as means to an end. For a democracy founded on the promise of equal and unalienable human rights, there is no graver compromise. If the country needs to make this compromise -- as I and, apparently, most Americans think it does -- it needs to look its behavior squarely in the eye.

Contradictory spins of the detainee compromise already spinning

The New York Times's Adam Liptak today (Saturday, September 23, 2006) quotes Human Rights Watch's Jennifer Daskal, (behind the Wall):

"The McCain, Graham, Warner trio really fought back and prevented the administration from winning its effort to reinterpret Common Article 3." Liptak adds, paraphrasing Daskal, that the "proposed law, at least if it is interpreted honestly ... would prohibit interrogation techniques like sleep deprivation, forced standing for long periods and extreme temperatures."

But of course the administration has said exactly the opposite, and so for that matter have sources close to McCain, Warner, and Graham (see the Byron York article in the previous posts). So have various liberal commentators (see eg Balkinization).

Much of course depends on what you mean by "at least if it is interpreted honestly." And thus the fundamental problem with a compromise that achieves its aims by general language that papers over and obscures differences. The differences resurface, sooner or later, sometimes worse they were originally. Sometimes papering over differences is a good idea - saves lives, saves face. But other times it simply postpones the conflict, which resurges at compound interest. In a democracy, face-saving compromises that leave key terms unresolved and undefined are generally a bad idea.

The detainee compromise, let me be clear, was better than I thought it would be. I'm in favor of it, on balance. But, still, it invites spin and resurrects legal uncertainty because it refused to be as specific as it should have been. I understand - or more exactly, I don't understand, because understanding Congress eludes me - the necessities of artful obfuscation that successful negotiations often require. But specificity and transparency are essential to the central issue here of democratic legitimacy for controversial actions and methods that deeply divide the public over fundamental liberal values of safety and liberty. What techniques exactly and in detail are permitted in interrogation? It should have addressed specifically waterboarding, cold rooms, standing for long periods - all the things that Daskal says are not permitted but lots of other people say they are.

So:

• Yes, the executive "interprets" treaties, not Congress.
• Still, Congress can pass any law it likes as a matter of domestic law and achieve functionally the same result as interpreting a treaty, simply because our constitutional system operates on a 'last in time' rule.
• I share the concern that the US not simply "define down" its treaty obligations by passing statutes for domestic law purposes that say, in effect, where the treaty says "white," for domestic law purposes "white" means "black"; the US has an obligation to conform its domestic law executing the treaty in ways consistent with the treaty.
• Courts of the United States, unlike many countries, however, generally lack the ability to strike down a statute passed by Congress, even if it arguably and even if in the view of the court it puts the United States in violation of its treaty obligations; it is a power of sovereignty, wise or unwise, just or unjust, prudent or imprudent, for the political branches of government to violate international law if they determine to do so.
• Terms of a treaty article, such as Common Article 3 - "degrading" treatment, for example - are vague, and not sufficiently specific to support legal liability, particularly criminal liability, without further interpretation and guidance; otherwise, the application of such terms fail the elementary test of the rule of law because, without greater specification, they do not make plain what is legally permitted and what is legally prohibited. Rights groups such as the ACLU or HRW would not hesitate to assert void for vagueness, lack of specificity inconsistent with the rule of law - because a reasonable person could not know in advance that conduct was legally punishable - faced with such language where, for example, it was asserted by some nasty regime, Belarus or Uzbekistan, or in the case of some US law law that might penalize someone the ACLU wants to defend.
• It is perfectly okay for a domestic legal system, in good faith and consistent with the treaty, to supply specificity for purposes of imposing legal liability, on treaty terms such as "degrading" treatment; people may argue about whether the domestic law interpretation is a fair one, but the very fact of supplying an interpretation is not per se prohibited, and indeed is often regarded as showing a state's enthusiasm and support for a treaty. The question is whether the supplied domestic law is consistent or not with the treaty.
• Treaty terms will be interpreted, if by no one else than a judge having to determine whether to impose liability.
• It would be better, in a democratic system - required, one might hope, in ours - however, that vagueness (really, the problem of specificity under the rule of law, as a precondition for imposing liability) were first addressed by the legislature rather than a judge making it up as he or she goes along and, worse, imposing liability on an interpretation given after the fact, when it is least fair. Rights groups often prefer to cut the legislature out of the process, out of a general mistrust of democracy and out of a fundamentally elitist bet that elite lawyer groups can work a better deal for themselves dealing with a judge and not the legislature - the history, one might say, of the ACLU and other such groups. The same is true in legal systems in which treaty obligations rank above mere statutes passed by the legislature - it makes reasonably good sense in that case for the legislature not to have a role once past ratification; it really is a question of judicial interpretation. Rights groups often act as though the US system were like those Continental systems, seemingly on a theory that it you act as though it is that way, you might convince a judge to make it so.
• Even though there is a kind of scholastic difference - discernible, frankly, only to strong partisans of executive power theories - between Congress impermissibly "interpreting" a treaty and Congress passing a 'last in time' statute that simply does what it likes, in practical terms they reach the same result. So that aspect of the compromise does not really appear all that meaningful in practical terms, though no doubt it means a lot to certain parties.
• What matters in the compromise is who gets to define what. Congress gets to define the grave breaches - the big nine (they are: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages). Of them, "cruel or inhuman treatment" is most vague; torture is the next most vague; and the rest are reasonably specific.
• But the whole compromise exercise is largely back to square one unless Congress is willing to be specific about what exactly constitutes torture, what exactly constitutes "cruel or inhuman treatment." Is HRW's Jennifer Daskal right, and cold rooms and sleep deprivation are prohibited as grave breaches under the compromise? Or is Stephen Hadley right and these are okay? What about waterboarding?
• The process of defining grave breaches under under the War Crimes Act (meaning, informally tracking Common Article Three, but by means of a domestic statute, the War Crimes Act, that avoids formally saying it is interpreting or defining Common Article Three) is not done until specific interrogation techniques under grave breaches are defined by Congress and voted on by a raise of hands. Otherwise, the same endless debate - charges of bad faith, dishonesty, and for that matter, uncertainties over the legal status of CIA and other US officials, will not be settled.
• Does anyone think for a moment that rights groups and hitherto largely silent liberal and left groups, in the United States and abroad, will not insist, as soon as someone is subjected to sleep deprivation, that the US agents involved have committed war crimes? And lacking a definitive answer from Congress, embedded in legislation, the argument will never end. Why exactly do the negotiators of the compromise believe that the participants in the interrogation program are now free of concern about liability? Because the compromise prohibits private actions in US courts - there are non-US courts, and there is always the possibility of another Justice Department down the road that thinks differently about things? If I were a CIA agent, I would feel somewhat protected, but not completely.
• More importantly, really, if Congress does not give specific, casuistical definition to grave breaches - actual practices, yes or no, by whom to whom - it will have failed in the most basic problem of all - the fact that in a polity deeply divided over these issues of the conflict of values, safety and civil liberties, where the people are deeply divided over the substantive answers, a democracy must fall back on democratic process to provide a clear answer.
• As for the administration, it defines - that is, it "interprets," getting formalistic - the less than grave breaches of the treaty, of Common Article Three, both what they are and consequences for violation. It is good that the administration's characterizations of techniques must be published in the Federal Register so that they can be known and debated. It would be even better, as Jonathan Rauch has urged, that the executive be required to report publicly, from time to time, on exactly what has happened - when and under what circumstances have such techniques been used. But it would be better if the administration were to have the specific sign-off of Congress on its "alternative" techniques - and I say this because I support the availability of these alternative techniques. The more controversial the technique, the greater the need for the legitimacy that can only be provided by the democratic process of the legislature.

The compromise is thus less than it seems precisely because, as Byron York says, the devil is in the definitions, both those made by Congress and those made by the administration - or, more precisely, the possible (likely?) failure of those institutions to offer clear and specific definitions.

Washington Post has best news summary of detainee compromise

After reviewing the news stories on the White House-McCain, Warner, Graham detainee bill compromise in the WSJ, Washington Post, New York Times, Washington Times, Financial Times, and Los Angeles Times, I'd say that the best of them is the Washington Post, by R. Jeffrey Smith and Charles Babington. Here. It has useful background to the issues as well as better detailing of the behind the scenes stuff than the other papers.

The WSJ is sober, competent, and workmanlike but doesn't have a lot of "inside" stuff. The New York Times is not very well filled out and tendentious in the opening. The Washington Times is perfunctory.

***
The WSJ editorial on the compromise, Saturday/Sunday Weekend Edition, September 23-24, 2006, here (open link):

The CIA program was thrown into legal limbo by the Supreme Court's June ruling in Hamdan v. Rumsfeld, which said that Common Article 3 of the Geneva Conventions applies to our conflict with al Qaeda. It was a bad ruling, since Article 3 is intended to apply to civil wars. But its vague prohibitions against "humiliating" and "degrading" treatment nonetheless became the law of the land, exposing CIA interrogators to potential legal jeopardy for conduct as benign as using women to question Muslim detainees.

So the White House went to Congress asking, among other things, for help in clarifying what terms like "humiliating" and "degrading" actually mean. Senator McCain and his allies objected that this would be tantamount to "rewriting" the Geneva Conventions. But their objection wasn't very convincing, since every country in the world already interprets Article 3 and somebody in the U.S. has to do so in real-world situations; legal clarity is better than leaving that job to activist judges and lawyers. In the end, the Senators came most of the way toward the White House position.

Congress will specify what it considers "grave" breaches of Geneva--such as torture and cruel and inhuman treatment. But it will be up to the Executive Branch--with Congress's advance blessing--to go ahead and issue a public Executive Order defining "non-grave" breaches. This isn't exactly the full-throated Congressional endorsement that CIA interrogators ought to be able to expect. But it is still an unprecedented acknowledgement that some forms of aggressive interrogation are both necessary and permissible in the war on terror.

To be more specific, it's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.

We're glad Mr. McCain came around to blessing a deal that will allow interrogations to continue. But we can't say his behavior in this affair has been a profile in political courage. Since the Abu Ghraib scandal he's been vaguely and irresponsibly suggesting that the CIA was engaging in unconscionable behavior. But when offered a chance to be specific about which interrogation techniques he really rejects, he punted the ball back to the White House.

Much the same can be said about many of Mr. McCain's colleagues, who have been demanding for decades that Congress be consulted on an ever-expanding range of defense and foreign-policy issues, only to run at the first hint of controversy. Their behavior shows once again why the Founders were right to vest the majority of war-fighting powers with the executive branch.

Jonathan Rauch has the best long view analysis of the detainee compromise

Jonathan Rauch, writing the Social Studies column in the National Journal, has the best "long view" analysis of yesterday's detainee compromise between the White House and McCain-Warner-Graham that I've read. Here.

Rauch emphasizes - and I fully agree - that the underlying issue has been Congress's lack of involvement and the Bush administration's unwillingness to involve it in creating long term, sustainable, comprehensive, durable, institutions for dealing with terror that will outlast the Bush administration or any particular presidential administration.

Rauch, I should add, is a keenly intelligent and sober writer on this and many other things.

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Over at Balkinization, people are angry. Jack Balkin, here; David Luban, here; Sandy Levinson, here; Marty Lederman, here. Julian Ku has another view, at Opinio Juris, here.

I've been asked a couple of times who "won," McCain or Bush. I'm no expert in all the inner politics - I live in DC, but downtown for me means the occasional trip to Dupont Circle - I live between American University, my house five blocks away, the National Cathedral, and the gym. I go to the airport more often than I go downtown. So I'm no expert in what goes on in Congress. But here is Byron York on the subject:

The key to the deal was the decision to have Congress define, in U.S. law, what are called “grave breaches” of the Geneva Convention. “We recognized that the president has the authority to interpret treaties,” says the source aligned with McCain/Graham/Warner, “but Congress now has the authority to define ‘grave breaches.’” In doing so, the negotiators enumerated nine offenses that everyone agreed constituted a grave breach of the treaty: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages.

Some are quite clear. Rape is rape, and murder is murder. But what does “cruel or inhuman” treatment mean? There was a lot — a lot — of negotiation about that. For example, the two sides haggled over the meaning of “severe mental pain” versus “serious mental pain.” The senators maintained that “serious” was the more serious term, and they won. What that will mean in practice is not entirely clear, which is probably what both sides intended.

But what is clear is that, after defining grave breaches, Congress gave the administration significant leeway to define non-grave breaches of the Geneva Conventions. “Grave breaches are crimes,” the source says. “Non-grave breaches are something else….We are going to spell out grave breaches, and then it is up to the administration to come up with sanctions for violations that are less than grave breaches.”

That could include many, if not most, of the techniques that the administration has used in the CIA interrogation program. For example, both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques. On the other hand, the status of the most notorious of those techniques, waterboarding, is not quite clear. When a reporter asked Hadley whether waterboarding constituted a grave breach under the new agreement, he answered, “We are not going to get into discussions of particular techniques.” A few seconds later, he added, “for purposes of complying with our international obligations under international law, that’s something that the president will clarify by executive order.”

For their part, however, members of the McCain/Graham/Warner camp believe that the use of waterboarding will stop. “We have a high degree of confidence that those things, going forward, will not occur,” the source says.

Whatever happens, the public will likely know about it. According to the proposed legislation, the president will define those non-grave breaches in a series of executive orders. Those orders would then be published in the Federal Register, meaning the policy would be public and subject to public scrutiny — and debate.

Affirming the president’s authority to define non-grave breaches also appears to answer White House concerns about Americans being prosecuted for actions that might constitute offenses to various world courts and human-rights bodies. The McCain/Graham/Warner side early on recognized that the White House had a powerful point when it raised the possibility, in one participant’s words, that “a liberal jurist would say that a female interrogator of a Muslim male is a grave breach.” By writing the president’s authority to define those situations into law, that possibility seems to have gone away.

So, too, has the possibility that any person will be able to use accusations of violations of the Geneva Conventions as a basis for a court action against, say, a CIA employee or the U.S. government. “There is no private right of action,” the source said. “No person may invoke the Geneva Convention or any protocols thereto in any habeas or civil action against the United States.”

Compromise between White House and McCain-Warner-Graham

(Update, Saturday, September 23, 2006. I've posted some reactions of my own, here.)

The Washington Post reports that a compromise has been reached between the White House and Senators McCain, Warner, and Graham on on at least a couple of contested points. Article here. Here is the AP. See also this press conference call with Stephen Hadley, national security advisor, via National Review Online, here. And Byron York's conversation with a Senate staffer, here. The ACLU is unhappy, press release, here, via NRO - although on a quick read it appears incorrect when it says that the President will have the power to define grave breaches of Common Article Three ("the president would have the authority to declare what is - and what is not - a grave breach of the War Crimes Act") - on the contrary, a critical element of the compromise seems to be, unless I am missing something, that Congress will define the meanings of grave breaches and the president will define terms of and sanctions for violating the non-grave breaches.

Just reading that Post and a couple of other news articles, it appears that (from the WP):

One official said that under the agreement, the administration agreed to drop language that would have stated an existing ban on cruel, inhuman or degrading treatment was enough to meet Geneva Convention obligations. Convention standards are much broader and include a prohibition on "outrages" against "personal dignity." In turn, this official said, negotiators agreed to clarify what acts constitute a war crime.

I understand this to mean that the administration agreed that it would not insist that the existing language of the McCain Amendment - last year's Detainee Treatment Act of 2005 - would not be the applicable standard declared to meet the standard of Common Article Three. So the administration gives up that standard. The Senators, however, agree that if that language is not used, they will give clarifying definitions, for what constitutes at least a war crime under Common Article Three, rather than leaving that undefined in US law beyond the language of Common Article Three itself.

However, agreement was not reached on other issues, e.g (from the WP):

The agreement did not extend to a related issue _ whether suspects and their lawyers would be permitted to see any classified evidence in the cases against them.

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See also this explanatory note from National Security Advisors blog, here:

The details are not yet in circulation, but from the news accounts it appears that the Administration has given up its bid to have the legislation state that "Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 . . . shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of [C]ommon Article 3 of the Geneva Conventions . . . " (The quote comes from Section 6 of the White House bill). In exchange, press accounts suggest that the Senators have accomodated Administration concerns regarding the proposed amendment to the War Crimes Act which would replace the status quo (simply criminalizing violations of Common Article 3) with a specific list of actions in violation of Common Article 3 that would trigger criminal liability. Of course, the bill from Warner et al. also took the laundry list approach; the issue on this point had to do with the scope of conduct to be so listed. A key point to look out for as details emerge, then, is the extent to which compromise War Crimes Act "list" departs from Common Article 3. It appears that the gap will be sufficient to lift the threat of prosecution with respect to at least some of the more coercive measures at issue with respect to the much-discussed CIA program for high value detainees. Assuming that to be true, however, some will contend that the legislation breaks with Common Article 3 after all. Others will contend that Common Article 3 continues to apply as before, and that only the War Crimes Act has been limited (a position that assumes that the GCs do not require criminalization of all possible CA3 violations...any thoughts on that?).

Other details yet to be revealed: It does not appear that the senators have dropped their objection to permitting ex parte presentation of classified evidence during commission hearings, however, so watch for more details on that distinct bone of contention. Also keep an eye out for details regarding the extent to which detainees will be permitted to assert Geneva Convention-based claims, since the Administration's bill forecloses that option while the bill from the Senators only specifically foreclosed reliance on the GC's in connection with damages lawsuits.

Marty Lederman has posted language at Balkinization, here, and here are his accompanying comments (also see some of the quite interesting comments):

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

I hope that that headline is a gross exaggeration, but based on a few quick seconds pursuing the "compromise," I'm afraid it's not.Here's the language. It's not subtle at all, and only takes 30 seconds or to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States."And then, for good measure, it would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories."

If this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

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I'm not posting any editorial comment at the moment; I'm still trying to work my way through the language.

Doomed Internationalist: My TLS review of Francis Fukuyama's 'After the Neocons'

The Times Literary Supplement has published this week Doomed Internationalist, my review of Francis Fukuyama's spring 2006 book, After the Neocons: America at the Crossroads. It is currently up at the TLS website, here.

(Officials such as Jack Straw taking on UK multiculturalism? Is it possible? See post here. Note my discussion of multiculturalism in the middle of the Fukuyama review.)

This is probably the last major review of After the Neocons to appear. I deliberately waited because I wanted to let the bloodletting among pundits and think tankers to die down - maybe you recall the ferocious exchanges in the Washington Post between Charles Krauthammer and Fukuyama over Krauthammer's AEI 2004 speech? And the White House (!) joining in the melee, releasing emails quoting Fukuyama's statements from the Clinton years in favor of removing Saddam? In a book that is partly an intellectual history of neoconservatism as well as a sharp critique, I wanted to hold off a bit and see all the back and forth together.

Unfortunately, I then got distracted writing other stuff, all of which took longer than planned, and was very late getting something to the TLS. Worse, the editor had generously - generously - offered 4,000 words, which by TLS standards is very long (we at the TLS believe in relatively short, clear reviews that actually describe and review the book at issue, and don't simply take the opportunity for a tangent more to the reviewer's liking, unlike, oh, I don't know, the Competition over at the NYRB ...) and I had responded by helping myself to another 5,000 more. I've never done something quite so idiotic writing reviews anywhere - I think I've been doing too much academic writing lacking the proper discipline. 10,000 words for a review? The review was turning into a book.

Anyway, my dear friend John Ryle, anthropology editor of the TLS and chair of the Rift Valley Institute and professor at Bard College, took it over with his usual skill, turned it into the eminently readable prose you see before you today, and got it back down to 4,000 words. With the result that I can't really remember anymore what the x'd 5,000 words said, which shows how important they were(n't) in the end. So many, many thanks to John, and I won't do that to him again. But thanks to John, and to Peter Stothard, the TLS editor, who invited me to write it and gave me a lot of space to develop it. I'm very pleased with it. It had been a while since I had written for the TLS - which I regard as hands-down the greatest of the book reviews - and I'm absolutely delighted to be writing for it again.

Larry Solum on Daniel Solove on Judge Richard Posner

Among the many reviews, and exchanges over reviews, of Judge Richard Posner's new counterterrorism book, Not A Suicide Pact, Larry Solum's short take, on his Legal Theory Blog, stands out (note last paragraph especially) (Larry pictured):

Daniel Solove has a post entitled Judge Posner's Not a Suicide Pact over at Concurring Opinions. Here is a taste:

"I agree with Posner on the point about the living Constitution. Posner's point is that like it or not, the Constitution is already a living Constitution: "So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written." (p. 19). The problem with Posner's arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because "when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head." (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much." (Solove)

(Solum:) I am inclined to disagree with both Solove and Posner about formalism. Posner's frank endorsement of judicial power to amend the constitution should be controversial--something quite odd has happened to legal theory if this kind of extreme legal instrumentalism is considered "within the pale" of acceptable legal argument. So, I am inclined to disagree with much of what he has to say how judges should act.

But if we go along with Posner and Solove, and are evaluating the relative institutional competence of the judiciary and the executive to make all-things-considered policy decisions about national security, then I think it is very hard to make the case for the judiciary as an institution. And if we are to give this power to the judiciary, then for heaven's sake, let's provide judges with adequate national security staff. Perhaps each Supreme Court Justice could be given a national security advisor who would oversee a staff of experts on intelligence policy, military policy, and diplomacy. I should think that with careful planning and a shared pool of area experts, the Court could get by with perhaps two hundred national security clerks. The existing footprint of the Court's building could be preserved with extensive underground additions, and that area could also house the new judicial command bunker from which the Court could operate in the event of attack.

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Instapundit rounds up some of the reactions to Judge Posner's book, here. And the Glenn and Helen Show podcast interview with Judge Posner, here.

Friday, September 15, 2006 "final" version of McCain-Warner-Graham bill in pdf

Update, thanks Balkinization, here is the version of the Military Commissions Act of 2006, as of Friday, September 22, in pdf. Also, while I'm at it, here, thanks to the indefatigable bloggers at Balkinization, is the original Bush administration military commissions bill.

Here, thanks Balkinization, is the "final" version of the McCain-Warner-Graham "Military Commissions Act of 2006." In pdf.

John Negroponte argues the administration's position in USA today, here. Bruce Fein argues against limitations in either the administration or the McCain versions of the bill on habeas corpus, here. And Slate's Elizabeth Bazelon on why Congress should not legislate particular interrogation techniques, here.

The McCain, Graham, Warner refusal to go to Congress for Common Article Three standards

The WSJ notes in an editorial today, here, that Senators McCain, Graham, and Warner, in their running battle with the White House over the legal treatment of detainees in the war on terror, do not want the core question of what Common Article Three and its key terms shall mean for purposes of US domestic law - including the legal liability of government officials - to go to a plain vote of Congress. The three senators appear to take the view that Congress should not opine - should not have to take a vote - on these policies of interrogation that are so much at the center of debate. On the contrary, at least at this point in negotiations, they take the view that the executive has sufficient authority to make those decisions on what is okay interrogation policy and what is not, on its own, with a mere opinion from some lawyer in the Justice Department. As the WSJ says:

Paradoxically, the GOP Senators claim the Administration has all the legal authority it needs to maintain the CIA interrogation program, which deals with the worst al Qaeda captives such as KSM. Even though the War Crimes Act as amended in 1997 makes it a crime to violate Common Article 3, the Senators say the Administration can proceed based on an opinion it can seek from the Department of Justice defining what Common Article 3 means.

But this is naive, if not disingenuous. Somebody is going to have to interpret what Article 3 requires in real world situations, and we'd rather see it done by open and honest Congressional debate than by secret Justice Department memos--or, worse, leaving that job to interrogators in the field on a case-by-case basis. In Hamdan, the Supreme Court showed little deference to the executive branch but it did invite Congress to play a role. Yet now these Members of Congress want to abdicate that role and tell the Administration it is on its own in interpreting Common Article 3.

As soon as some Justice lawyer writes an opinion on Geneva allowing "stress" interrogations (such as exposure to hot or cold, or sleep deprivation), it will be denounced by Europeans and liberal activists who have a different interpretation. A future President could also rewrite that Justice opinion, exposing CIA agents to ex post facto liability. And would the same Senators now saying that the CIA interrogation program is legal stand up and defend it under media and political pressure? Don't count on it.

President Bush and CIA director Hayden have both said, with every good reason, that given the legal ramifications for officials, in their personal and official capacities, and given that the last several years have ratcheted upwards and upwards the possibility of personal liability, that the only acceptable way forward is for the Congress plainly to act. What - have some Justice Department lawyer issue an opinion saying this is okay, and then have everyone who followed it up on charges, or career-ending sanctions, etc., a couple of years later? Under another administration with an entirely different agenda and different standards? And the senators think this promotes the rule of law? (I discuss those issues here.)

The real issues here are two, both ugly. First, if these actions are said to be already within the authority of the executive, with no need for Congress to act, the only "authority" exercisable by the administration guaranteed not to risk legal liability in the future is to say 'no' - to everything. Any OLC lawyer want to raise his or her hand to be the next John Yoo? Perhaps 'no' to everything is what Senators McCain, Graham, and Warner intend - disingenuous or naive, asks the Journal - but I hope not.

Second, by not putting these matters to a democratic vote in our legislature, the senators preserve an unacceptable status quo in which the executive takes all the decisions by reason of executive discretion - and Congress, because it had no role in the decision, is free to kibbitz, whine, complain, and Monday-morning quarterback from the sidelines to its heart's content. What the senators effectively want to keep in place is a system of democratic non-accountability in which Congress moans insincerely about being kept out of the loop of decision-making. Is whining while deliberately avoiding accountability really what Congress's role should be in questions as morally vital as this? I can understand Congress's desire to exercise power without responsibility - who wouldn't? - from every standpoint except that of being the legislature elected by the people of the United States.

President Bush and his administration have been taking these decisions for years now under theories of executive power. Like those theories or hate them - they have certainly had the effect of keeping Congress off the hook. Well, the courts have forced the president and the country back to Congress - and the response from Congress is, whatever you do, don't look at us. We just want to complain afterwards. President Bush and General Hayden are right to say, sorry, in that case the program comes to a halt - even if true that we have the authority, we cannot put the men and women who run these programs into personal legal liability just because Congress would rather not do its job.

These questions of what constitutes acceptable or unacceptable methods of interrogation are among the most pressing moral questions that the United States faces today. Senator McCain was not wrong to make it an issue. He is, however, wrong to seek to let Congress off the hook for an issue of this moral importance for the nation and practical importance for what it means for national security and the ability to prevent terrorism. As I put it a couple of weeks ago in the New York Times Magazine, it's congress's war on terror, too.

Our Congress should not be let off the hook. Let them raise their hands and vote, each and every one, and tell us what tradeoffs they would make - in detail, with respect to interrogation techniques, upon whom and by whom, without euphemism or elision - between liberty and security. There are tradeoffs, and who else should make them in a democracy except our elected representatives?

I would side with the president; others may side with other views. That's not the point. The point, rather, is that these questions are deeply morally contested by Americans - we are deeply divided on what constitutes torture, what constitutes acceptable interrogation techniques, and other vital matters in counterterrorism. In a case of deep moral division over substance, the only way to proceed is by democratic process. The President has done the right thing and stood up to call for Congress to legislate. Senators McCain, Graham, and Warner are doing the wrong thing - not because they personally are not willing to take a position; they are, and I admire them for that - but because they are seeking to let their colleagues, our elected representatives, off the hook, to not have to do the hard thing and take a public stand. It's a republic. Require the legislators to raise their hands and vote.

Mark Steyn on 9-11remembered five years on

Mark Steyn, in the Chicago Sun Times, here, takes note of the carefully passive tone of the 9-11 five year remembrances. He captures the national media's emotional tone exactly: "Stick to a limpidly fey, tastefully mopey, enervatedly passive prose style that suggests nothing very much can be done about the incomprehensible lost ... Behind those "IMAGINE PEACE" stickers lies a terrible failure to imagine."

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Coverage of 9/11 anniversary was too wimpy

September 17, 2006

BY MARK STEYN
CHICAGO SUN-TIMES COLUMNIST


A lot of the 9/11 anniversary coverage struck me as distastefully tasteful. On the morning of Sept. 12, I was pumping gas just off I-91 in Vermont and picked up the Valley News. Its lead headline covered the annual roll call of the dead -- or, as the alliterative editor put it, "Litany of the Lost." That would be a grand entry for Litany of the Lame, an anthology of all-time worst headlines. Sept. 11 wasn't a shipwreck: The dead weren't "lost," they were murdered.

So I skipped that story. Underneath was something headlined "Half a Decade Gone By, A Reporter Still Cannot Comprehend Why." Well, in that case maybe you shouldn't be in the reporting business. After half a decade, it's not that hard to "comprehend": Osama bin Laden issued a declaration of war and then his agents carried out a big attack. He talked the talk, his boys walked the walk. If you need to flesh it out a bit, you could go to the library and look up a book.

But, of course, that's not what the headline means: Instead, it's "incomprehensible" in the sense that, to persons of a certain mushily "progressive" disposition, all such acts are "incomprehensible," all violence is "senseless." Unfortunately, it made perfect sense to the fellows who perpetrated it. Which is what that headline writer finds hard to "comprehend" -- or, rather, doesn't wish to comprehend. The piece itself was categorized as "Reflection" -- dread word. No self-respecting newspaper should be running "reflections" anywhere upfront of Section G Page 27, and certainly not on the front page. But it has exactly the kind of self-regarding pseudo-sophistication the American media love. The proper tone for 9/11 commemorations is to be sad about all the dead -- "the lost" -- but in a very generalized soft-focus way. Not a lot of specifics about the lost, and certainly not too many quotes from those final phone calls from the passengers to their families, like Peter Hanson's last words before Flight 175 hit the World Trade Center: "Don't worry, Dad. If it happens, it will be very fast." That might risk getting readers worked up, especially if they see the flight manifest:

"Peter Hanson, Massachusetts

"Susan Hanson, Massachusetts

"Christine Hanson, 2, Massachusetts"

No, best to stick to a limpidly fey, tastefully mopey, enervatedly passive prose style that suggests nothing very much can be done about the incomprehensible lost. This tasteful passivity is the default mode of the age: Five years ago it was striking, even in the immediate aftermath, how many radio and TV trailers for blood drives and other relief efforts could only bring themselves over the soupy music track to refer vaguely to "the tragic events," as if any formulation more robust might prove controversial.

Passivity is far slyer and more lethal than rabid Bush hatred. Say what you like about the left-wing kooks but they can still get a good hate on. Sure, they hate Bush and Cheney and Rummy and Halliburton and Fox News and Rush Limbaugh rather than Saddam and the jihadists, but at least they can still muster primal emotions. Every morning I wake up to a gazillion e-mails from fellows wishing me ill, usually beginning by calling me a "chicken hawk" followed by a generous smattering of words I can only print here peppered with asterisks, and usually ending with pledges to come round and shove various items in a particular part of my anatomy. There's so much shipping scheduled to go up there I ought to get Dubai Ports World in to run it.

The foaming leftie routine seems to be a tough sell to a general audience. I see that, a mere three weeks after I guest-hosted for Rush, the widely acclaimed and even more widely unlistened-to Air America is going belly up. Coincidence? You be the judge. But I doubt the "liberal" radio network would be kaput if anti-Bush fever were about to sweep the Democrats to power this November. I think I said a few months back that the Dems would be waking up to their usual biennial Wednesday morning after the Tuesday night before, and I'll stick with that.
But there's more to the national discourse than party politics. And, whoever wins or loses, the cult of feebly tasteful passivity rolls on regardless. As part of National Review's fifth anniversary observances, James Lileks wrote the following:

"If 9/11 had really changed us, there'd be a 150-story building on the site of the World Trade Center today. It would have a classical memorial in the plaza with allegorical figures representing Sorrow and Resolve, and a fountain watched over by stern stone eagles. Instead there's a pit, and arguments over the usual muted dolorous abstraction approved by the National Association of Grief Counselors. The Empire State Building took 18 months to build. During the Depression. We could do that again, but we don't. And we don't seem interested in asking why."

Ray Nagin, New Orleans' Mayor Culpa, is a buffoon but he nevertheless had a point when he scoffed at the ongoing hole in the ground in Lower Manhattan. And whatever fills it is never going to include those "stern stone eagles." The best we can hope for is that the Saudi-funded Islamic Outreach Center will only take up a third of the site. But in our hearts we know whatever memorial eventually stands on the spot will be rubbish -- tasteful rubbish, but rubbish all the same. Last year, I criticized the Flight 93 memorial, the "Crescent of Embrace," whose very title is a parodic masterpiece of note-perfect generically effete huggy-weepy blather. And in return I received a ton of protests pointing out that the families of the Flight 93 heroes had "approved" the design. All that demonstrates, I think, is how thoroughly constrained our society is within its own crescent of embrace: The cult of passivity has insinuated itself deep into our bones. Behind those "IMAGINE PEACE" stickers lies a terrible failure to imagine.

At what point does a society become simply too genteel to wage war? We're like those apocryphal Victorian matrons who covered up the legs of their pianos. Acts of war against America have to be draped in bathetic music and uncomprehending reflections and crescents of embrace. We fight tastefully, too. Last week one of America's unmanned drones could have killed 200 Taliban big shots but they were attending a funeral and we apparently have a policy of not killing anybody near cemeteries out of sensitivity. So even our unmanned drones are obliged to behave with sensitivity. But then, these days the very soundtrack to our society is, so to speak, an unmanned drone.

Congress, the President, and defining the terms in Common Article Three

The debate in Congress and with the President over legislation that would define, for purposes of US domestic law (including domestic criminal prosecution under war crimes law), the meaning of terms in the Geneva Conventions' Common Article Three includes accusations that such definitions mean the violation of Common Article Three, simply by definitional fiat. The treaty language says "white"; domestic law is amended to announce that the meaning of "white" for these purposes is "black," so goes the form of argument. Some of these concerns are raised by people with long experience of the Conventions, whether as military lawyers, human rights lawyers, government lawyers, etc.; some of them come from people who seem to have happened to read the text in some blog post or newspaper article in the last little while but are now seized with opinions about it.

The concern about definitional fiat is a real one. One might violate the plain language of Common Article Three by simply redefining it in domestic law in ways that eviscerate its terms. One can argue a lot over what does or does not do that. I am usually more impressed in such arguments by people who are able to situate the arguments within the actual history of non-international armed conflicts in which there have been concrete historical applications - or non-applications - of Common Article Three. I am correspondingly less impressed in such arguments by people who believe that, having merely read the words on paper, they somehow "know" what they mean for the specific legal task of applying them in non-international armed conflict.

As for principles of interpretation in international humanitarian law, well, that law is historically conditioned and situated; and those historical conditions are established in the law itself by evolving state practice. As Adam Roberts has written on the general meaning of IHL:

The laws of war are strange not only in their subject matter, which seems to many people a contradiction in terms, but also in their methodology. There is little tradition of disciplined and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have been at assessing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.


(Adam Roberts, "Land Warfare, From Hague to Nuremberg," in Michael Howard, George J. Andreopoulous, and Mark A. Shulman, The Laws of War: Constraints on Warfare in the Western World (Yale UP 1994), at 117.)

History, usage, practicality in application, how things have successfully worked or not worked in the past, changing circumstances of war, including the special facts of transnational terrorism - all this matters to the interpretation of Common Article Three. The United States is a primary actor in security matters, in war, in the world, and its state practice and opinio juris (including what Congress says and does in this very instance) on the question of the meaning of Common Article Three is a weighty component in the very determination of the international law meaning of Common Article Three's terms - quite apart from Congress's plenary authority to establish its meaning by statute for US domestic law purposes.

The mere idea that the words of Common Article Three are self-explanatory, and that they thereby require no interpretation, is nonsense. What is at issue is who shall start out the task of interpretation for legal purposes in the United States - the Congress or some judge sitting in a court. Anyone who says that Congress ought not to be giving, by passing a statute, its domestically authoritative interpretation of the words of Common Article Three is merely saying that the judiciary should be the first and indeed only ones to do it, instead. Because they will be interpreted, the moment they wind up being litigated. The moment that someone brings a civil case, or an authority initiates a prosecution against, for example, a US official for violation of Common Article Three, then of course a judge will have to interpret the meanings of those terms. (I am leaving aside here the argument over whether Congress can provide an authoritative “interpretation” or whether it simply acts by passing a statute having the same effect; the ‘last in time rule’ means it can reach the same result no matter what it is called.)

"Degrading treatment" - can anyone really think this term is sufficiently transparent on its face to determine criminal liability? Can anyone really think that, for purposes of individual liability, a term as vague as this does not require serious interpretation against some articulated standard? The question is who shall establish that standard in the first instance - Congress or a judge, operating against, well what? His or her subjective impressions, subjective impressions set against Webster's, set against what the ICRC or Amnesty International or Human Rights Watch or the EU tells it in an amicus filing - or instead what is passed as law by elected representatives charged under the Constitution with establishing the laws of the United States, and particularly, one might think, the laws of the United States that bear on individual guilt, innocence, and criminal liability?

The question, therefore, is whether, for purposes of US domestic litigation, civil and criminal, the Congress should be able, or indeed have an obligation, to define more concretely and precisely the meaning of terms, the violation of which may easily have serious civil or criminal consequences under US law. It is hard to see how, in a constitutional democracy, Congress is not able to define terms which, in domestic law, will carry significant legal consequences, or why that fact alone should suggest a "violation" of US treaty obligations under the Geneva Conventions. Indeed, it is hard for me to see how Congress does not have an affirmative obligation to do so, in order that the law can be plainly known and understood by those charged with enforcing it and those charged with abiding it. That's what legislatures do; that's what legislatures, having an obligation to the citizens whom they represent and who are expected to follow such laws on threat of punishment, are supposed to do. It is a crucial part of the rule of law.

It is not really analytically useful, therefore, to pose the question put by a reporter to President Bush on this subject last week – how would the US view, for example, North Korea (or was it Iran?) enacting its own interpretation of the Geneva Conventions, or some part thereof, and mistreating a US soldier on that basis, pointing to its own legislation? President Bush responded precisely correctly – viz., that it would be a good idea if North Korea were to adopt US legislation on this subject, and then follow it.

(One might add that it would also be a good idea if any of America's actual enemies in its current conflicts, not merely reporters' hypothetical enemies, were to follow the Geneva Conventions on pretty much any basis. Implicit in the reporter’s question is the remarkable but apparently broadly held assumption that “reciprocity” in the law of war is only important if it works against the US. That's why the reporter, in order to try and score a dubious point had to frame the question as one involving a hypothetical enemy. Because the obvious answer, if asked about, for example, the Taliban or Iraqi insurgents, is either that they would hold a US soldier illegally as a hostage in some fashion to try and bargain for something, or else they would behead him or her on the internet for the delectation of Al Jazeera's audience in the Muslim street, or both. But either way, the content of US legislation on the subject would not really have much to do with it. Said reporter would be laughed out of town anywhere but in today's mainstream media, if he or she dared ask that question about America's actual enemies today, which is why it is always framed as a hypothetical involving people who presumably would follow the Geneva Conventions to the letter but for America's wicked reinterpretation/rejection of them. Why is it that we always hypothesize an enemy that reciprocates our treatment of them - but then when it comes to actual war, somehow the hypothetical honorable enemy turns out to be an enemy who doesn't reciprocate, doesn't behave honorably, but nonetheless expects us to do it anyway? That being the case, shouldn't President Bush's impolitic response to this reporter have been - why are you asking me about hypotheticals when you can ask me about the real world? Don't we have real enemies, people fighting our soldiers at this moment, and isn't the proper question to ask what difference any of this makes to their behavior? Or don't you want to hear the answer - viz., none? That is not an argument that America should not have standards for its treatment of detainees, but it is to point out that chattering about setting our standards so that our soldiers will somehow receive "reciprocal" treatment from the enemy is simply a false premise and can only be made with a straight face when talking about pure hypotheticals.)

The fact that the language starts out as a treaty obliges Congress, as a matter of international law obligation, to see that its pronouncement, its statutory enactment, falls reasonably within the meaning of the treaty. The mere fact of defining, however, these vague treaty terms is not per se a violation of US or international law. It is, in any case, beyond the power of the courts to tell Congress that its statutory enactment is impermissible as a violation of international law; Congress can legislate as it likes and alter US obligations under treaties as it pleases under the last-in-time rule. The result might well be that Congress places the US in violation of its international law obligations, while yet standing beyond the competence of the courts to remedy.


The fact that other countries have different constitutional systems that take the national legislature out of the loop with respect to treaty interpretation and adjudication, or the fact that other countries do permit their courts to remedy legislative enactments held by their courts to be in violation of international law, is simply not relevant to the existing constitutional mechanisms of the United States, irrespective of whether one believes that a good or a bad thing.

Paul Kennedy on Security Council reform and Kofi Annan's successor

Paul Kennedy in the Guardian on UN Security Council reform and the race to become Kofi Annan's successor, here. Professor Kennedy is the Yale history professor who authored the new book on the UN, Parliament of Man; the problems with that book and its take on the UN have been ably noted in the review by Rosemary Richter in the Times Literary Supplement, here.

Kennedy's Guardian op-ed appears upon the occasion of this year's opening of the UN General Assembly - the annual pilgrimage to New York in which heads of state gather to deliver mostly windy speeches, listen to the Secretary General note with satisfaction UN reforms that in fact have barely taken place if at all, while announcing new ones that will never really come about, and engage in a peculiarly internationalist form of hand-wringing and self-congratulation. This year has a particular focus, however, as Kofi Annan's term comes to an end at the end of the year, and the race is on to become his successor:

The question acquired an urgency this week as heads of states and governments around the world made their way to New York, to deliver their addresses to the UN general assembly and to elect a successor to Kofi Annan as secretary general. The latter task has immediately focused attention on the political horse-trading that takes place inside the security council.

While the foreign minister of South Korea, Ban Ki-Moon, emerged as the frontrunner in the race for the secretary generalship, member states gathering for the UN 61st annual assembly were promised a package of reform proposals. These schemes, designed to improve the way the UN works, include measures to cut waste, bureaucracy and the possibility of corruption, streamlining of procedures, and plans for an overhaul of the body's shaky finances. All of which is important, but none of it excites the general public - or is even a priority for those governments most likely vote for such changes. The only topic guaranteed to grab the attention is the one that has stirred member states ever since the UN was established in San Francisco in 1945: the demand for reform of the security council itself.

The process of electing a new secretary general throws into sharp relief the intrinsic imbalance of the security council's composition. Mr Ban was reported to have won the support of 14 of the council's 15 members in the latest ballot, putting him comfortably ahead of his closest rival, India's candidate, Shashi Tharoor. Only one thing may now block Mr Ban's selection by the security council for the endorsement of the general assembly - and that would be if the one contrary vote had come from one of the permanent five members with veto powers, (Britain, China, France, Russia, and the US).

Thus selection of the new SG is tied intimately to the question of Security Council reform. Kennedy correctly says that Security Council reform is the only issue of UN reform that actually grabs the imaginations of UN member states - corruption, finances, the abuse of the human rights mechanisms by human rights abuser states, patronage and nepotism, rape and sexual abuse by UN personnel and peacekeeping troops, and so on. No, the only one that actually grabs attention for UN member states is "reform" of the Security Council, which is to say, a dilution of its veto powers and the dispersal of its powers. And the attention to it is not merely a matter of third world states seeking to make the General Assembly the seat of power - it is driven, actually, by Japan, Germany, Brazil, and India (and sometimes Nigeria and Indonesia), particularly, seeking power for themselves.

None of this is going anywhere, of course. And it is not merely or even especially the United States that prevents it. It is, more precisely, the smaller and less powerful Security Council states that have the most to lose by Security Council reform. France's claim to a place in the security affairs of the world is premised almost entirely on its permanent SC seat. None of the permanent five especially wants to see the veto either diluted or expanded to include new players, but they have quite different reasons. For France, Russia, China, and somewhat Britain, the issue is preserving international power that does not actually reflect global reach and power - the Security Council permanent seat and veto are a means from a left-over history of WWII that allows you to punch above your weight.

For the United States, on the other hand, which does have global reach and power, even if stretched at this point, the issue is more the effectiveness of the Council itself - for the United States, the issue is that even granting the "justice," as it were, of expanding the Council to make it more "representative" of today's world (although, in fact, the design of the Council was never intended, from 1945 onwards, to be "representative," but instead deliberately a confab of the Great Powers), that could only come at the expense of the limited effectiveness of the Council as it stands today. Add more members and, in particular, add more vetoes, and you guarantee even greater gridlock and hold-up premiums than you have already.

Moreover, each of the proposed new big members that would supposedly make the Council more globally "representative" raises big regional concerns - Japan/China, Germany/another EU vote with France and Britain?, Brazil/the rest of Latin America, India/Pakistan, etc. Nigeria/possibility of civil war and break-up. Moreover, it is not clear what security assets usable globally these players bring to the Security Council table - and their military use regionally in many cases would raise unacceptable hackles among their neighbors. We already see a China that uses its veto not merely for plainly security matters of self-interest, but - in the case of Sudan, for example - effectively rents it out for commercial purposes.

So what does Professor Kennedy have to say? Nothing, really, that hasn't already been said extensively in the discussions last year that preceded the fan-fare, followed by bust, of Annan's big package of UN reforms that have since largely disappeared into thin air. It's a standard, reasonably useful discussion - although his failure to note the difference between the US position and that of other Security Council members on Security Council reform is noteworthy - the US position is only partly that of the other council members. His conclusion is the one that pretty much everyone else reaches:

So the UN will limp along, caught between the ambitiousness of its original design and the blunt fact that the world order remains one in which egotistical great powers still play a disproportionate role, especially in protecting their own interests. This was ever so. The best that can be hoped is that the veto-bearing members will see the need for working together.

WHO endorses indoor residual malaria DDT spraying - it's about time, too

Instapundit notes that the WHO has finally, after years and years and years, and many lives lost among the world's poorest people, overcome the anti-human wing of its environmental lobby and endorsed residual indoor DDT spraying against malaria. It's about time. It's long been about time.

Will Taft on the over-lawyered Bush administration

Will Taft has an essay in the Yale Journal of International Law, here, criticizing the extent to which the Bush administration's foreign policy - and many of the most divisive parts therein - have been driven by lawyers. (Thanks, Peter Spiro at Opinio Juris, for this post on it.) Peter quotes a couple of key grafs that are worth repeating:

It was the lawyers from the Department of Justice who pressed for a determination that the Conventions and other standards of international law and practice did not govern the conflict. Bearing an abstract hostility to international law, developed in the sheltered environment of academic journals, and equally unfamiliar and unconcerned with our broader policy interests in promoting respect for the rule of law among states as well as within them, these lawyers proposed to create a regime in which detainees were deprived of all legal rights and the conditions of their treatment were a matter of unreviewable executive discretion. Why lawyers, of all people, should want to establish the point that such a lawless regime could legally exist, even as a theoretical matter, much less recommend that one actually be created, is, I confess, beyond me, and in itself it a sad commentary on the extent to which sophistry has penetrated what used to be widely regarded as an honorable and learned profession. . .

The nation’s foreign policy on which our liberty and prosperity depend, then, instead of being the product of a careful review of our national security requirements, our relations with other states, and our long-term interests, became simply the occasion for lawyers with but slightexperience in and no responsibility for these matters to obtain official endorsement of an exotic legal proposition. Even if the proposition had been correct, which the Supreme Court determined it was not, this abstract exercise would have been a mistake. Of course, it’s important to know what the law is, but it’s even more important to know what it is in your interest to do. When you know that, it is time to ask the lawyers whether it is lawful, and if it is, you go ahead with it. This is the way foreign and national security policy have generally been made and carried out in the past, and international law has developed consistent with state practice determined by policymaking officials.

Peter adds, correctly I'm certain, it's no question who Taft has located in his cross hairs - John Yoo. I have to say, though, that I think John gets unfairly caricatured in many of these discussions. In particular, his book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9-11 (University of Chicago 2005), on executive power is much more powerful than his legion critics give credit for - all you have to do to derail any of its arguments is say, "torture," and discussion is over. But I'm afraid the arguments are more powerful than that, even if you are not ultimately persuaded.

Still, I'm pleased to see this insider piece by Mr. Taft, in no small part because it gives me insider confirmation in print on something I've been writing myself, somewhat on the strength of conversations with people in the administration past and present. Here are a couple of grafs from something that will come out in Policy Review, in revised form, in another few weeks:

Yet it would be a mistake to characterize the crusade for greater executive power as merely an ideological obsession of an interior claque of administration lawyers, revolving around the relentless and, by nearly every account, genuinely obsessive David Addington. In the academic quiet of my study, I sit with John Yoo’s recent book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9-11, defending executive power; the arguments are considerably more compelling than the critics are wont to grant. At some points, despite my final conclusion that the national emergency state cannot last forever or even for a long time and that democracy requires the action of the legislature, I find his arguments for inherent presidential power very persuasive even if not finally conclusive. The force of argument with respect to the conduct of war is overwhelmingly so – the issue is not the executive’s power in that case, but instead how widely “war” can be defined so as to invoke that power. This issue was new to the post-war United States following 9-11. It was not so in many other countries, even developed, sophisticated democracies, such as Germany or Italy experiencing serious terrorism in the 1970s, which responded with draconian state powers, sometimes continuing to this day, compared to which the Patriot Act is a minor, minor inconvenience. My own experience of the national security states of Latin America in the 1970s and 80s – Chile with its permanently renewed, over decades, “state of emergency” under Pinochet, for example, or Guatemala in the early 1980s – convinces me, at least, that emergency presidential power conjoined with highly ideological, abstract notions of “war,” such as the war of anti-communism, must eventually erode democratic institutions. The United States is not exempt from that risk – American exceptionalism is real, but not that real – and ultimately the accommodations that national safety requires of civil liberties must be placed on a democratically assented-to footing as a bulwark against what our forebears would have called ‘despotism’.

Yet the drive for greater executive power is not only a function of certain right-wing lawyers in the administration and out. Significantly (and significantly overlooked), it is also driven by an equally obsessive, excessive legalism among liberals and the left, who often choose to call the president’s actions “illegal” rather than settling for calling them “wrong.” A stroll across the academic parts of the liberal-left blogosphere reveals just how widespread this tendency is even among otherwise sober-minded professors; fantastical plans for impeachment hearings, seemingly (to the outsider, anyway) far-fetched theories of criminal liability of administration insiders, dreams of payback that center on allegations of illegality. Many of the administration’s critics having lost the distinction between bad policy and illegal action, the natural result on the other side, within the administration itself, is excessive concern with protestations and formalities of lawfulness. The administration’s many, many lawyers circle the wagons, zealously protecting the administration’s legal positions far beyond the point of relevance to practical policy-making – indeed, to the detriment of sound policy-making. They believe that as advocates for their clients, the president and his administration, they have no choice, particularly given how high outside critics seek to raise the stakes – criminal penalties, civil trials, and the prospect of criminal indictment, civil suits, and personal bankruptcy defending oneself. The collapse of the Fitzgerald investigation but the unconscionable persistence of the Libby indictment are an object lesson to the administration’s lawyers that the threat is real. Both sides in this running escalation of threat and response needed, long ago, to take a deep breath and a step back – and no one did.

The administration’s lawyers should never, for example, have been issuing legal opinions ruminating on just how serious bodily damage would have to be in order the violate the torture convention, merely in order to assert the hypothetical outermost edges of presidential authority, as though in a law school classroom and not the halls of actual power, policy, and responsibility. We need instead actual policies on actual techniques of interrogation and what crosses the line into actual torture – not lawyers debating torture hypotheticals as a way of pressing a quite separate argument about executive power. While this debate over abstract hypotheticals goes on, meanwhile, CIA field officers, pressed in the period following 9-11 to come up with actionable intelligence, move interrogation techniques forward, while nervously wondering if they will be criminally indicted and, as recently reported in the press, therefore consult their own lawyers, sometimes refuse to participate in interrogations or even meetings discussing interrogations, and sign up for legal liability insurance. This lack of certainty as to legal standards is entirely unacceptable, and the maneuverings of administration lawyers to protect the outer boundaries of executive power while leaving essential national security policy dangling extraordinarily bad judgment. Yet, on the other hand, the administration’s legion critics should never have been – and should not continue to be – baiting them to do so by relentlessly dangling the threat of individual criminal liability over the heads of officials at the first breathless opportunity and as an alternative to winning the 2004 election and the opportunity to establish policy themselves.

The Bush administration thus turns out, peculiarly, to be the most over-lawyered ever seen. And yet the charge is often leveled against this administration by its critics of lawlessness. The substance of this, of course, may be debated (and I myself think not), but whether one agrees or disagrees, there can be no doubt that the administration’s quite natural response to charges of lawlessness has been otherwise excessive lawyering - lawyering that makes no sense from the standpoint of the formation of practical policy. Yet, given the extreme legal claims of its critics of impending impeachment charges, criminal liability, and civil claims, lawyerly memos, opinions, and legal documentation are unfortunately not at all imprudent. The drastic raising of the legal stakes for both institutions and individual officials in the formation of policy has been near-lethal to the ability to reasonably and practicably formulate policy – as a future Democratic administration will one day discover, to its dismay. And, as a corollary, indubitably the least helpful exercises in seeking a comprehensive counterterrorism policy are those that view any relaxation of the administration’s existing legal positions as the “gotcha” moment – necessarily a tacit admission, to be used in court if at all possible, of past illegality and possible criminality.

Akhil Reed Amar gets internationalist religion

Yale constitutional law scholar Akhil Reed Amar gets religion about our One World, and preaches a sermon, a hymn to transationalism, with the special zeal of the newly converted:

Then came 9-11. And in a flash it became blindingly clear to me that Publius's vision of America's splendid oceanic isolation--of a New World far removed from the woes of the Old World--cannot serve us well today, or for the centuries to come. Planet Earth is, in truth, One World. Global warming, transcontinental pandemics, deforestation, worldwide poverty, overpopulation, nuclear proliferation, free trade, jet travel, international human rights, the Internet, and, of course, the threat of international terrorism--all these planetary issues require planetary solutions.

Such solutions will require attention not just to individual rights, but also to international structures of cooperation and coordination--structures that will need to be far more effective than the United Nations as currently organized. Such solutions will also need to involve not just judges, but executives and legislatures. So we shall have to go beyond the tired maxims of my teachers, with their exaggerated confidence in Bills of Rights and judicial review.

Hmm. Professor Amar might want to be somewhat careful, even in the midst of the exalted fire of intellectual conversion, about the things into which one puts "exaggerated confidence." He might consider, too, what the young Edmund Burke wrote to a Quaker friend, who had undergone a religious experience and was eager to share his new-found passions of idealism and do-gooding:

I don't like that part in your letter wherein you say you had the testimonies of well doing in your Breast, whenever such motions rise again endeavour to suppress 'em."

Fiduciaries and friends

I happened to notice a post by Ethan Lieb over at Prawfsblog asking about canonical articles on fiduciary relationships. I'll try to dig some stuff out of my files - it used to arise partly from my business associations stuff, but in fact much more relevantly in my nonprofit law work. However, I myself am much more interested in how Professor Lieb develops a theory of friendship which, as he says, is really the driver in his theorizing about fiduciary as contrasted with, say, Larry Ribstein's contractual account of fiduciary.

For what it's worth, it seems to me that a theory of friendship that accounts for fiduciary relationships has to deal with the question of social and moral hierarchy. By that I mean that friendship is a social relationship that presupposes a certain equality between the friends. It is a relationship in which, if two people are not ordinarily of equal rank in society - in, for example, a hierarchical aristocratic society - they in effect agree to set aside those differences for the sake of friendship. We tend to overlook the hierarchical virtues in our egalitatarian way of looking at the world under conditions of modernity - but certain virtues require a certain social relationship that is not egalitarian for their exercise, such as forgiveness and mercy (there were a couple of decent analytic philosophy books on those topics a number of years ago, I recall). You can't be merciful to someone who, in that moment, is entirely your equal; you cannot forgive someone who does not stand in a certain social relationship with you of having wronged you - and these are not relations, at least in that moment, of social or moral equality.

If, as I suggested above, friendship is a relationship of equality, I wonder how a fiduciary relationship would be characterized? As a relationship of equality? It might start out that way, but doesn't the creation of a fiduciary relationship introduce a certain inequality into the relationship? Isn't that more or less what master and servant, agent and principal means? Seen that way, doesn't Professor Ribstein's account seek to find a way to make a very ancient, but inegalitarian, social and legal relationship, fiduciary, compatible with modernity's requirement that, even if in a given moment, one person subjects himself to another, it be done as a matter of choice, hence as a matter of contractual choice?

(The question of hierarchical virtues came up for me a few years ago in a very odd context, when I was asked to write an essay for the LA Times book review on the pornographic classic, Story of O, on the occasion of the death of its pseudonymous author. I believe I might have been the very first person in a long time to have read the non-pornographic parts of the novel, and I discovered, much to my surprise, that the whole book is one long essay on eroticized virtues of hierarchy. I've never had the nerve to post it to SSRN (it occasioned many nasty letters to the editor, as well a number of quite indecent proposals) but anyway you can find the essay, The Erotics of Virtue, here in pdf (it's not that long, but the pdf takes forever to download).)

September 11, five years on

This September 11 will be a quiet one for me. I will spend the morning writing an essay for the journal Policy Review on legislating counterterrorism policy. At noon I have volunteered to teach a class at my daughter's high school, to ten teenage girls on just war theory. We will discuss 9-11. They were in eighth grade when 9-11 took place, my daughter was in third grade, and they spent that morning watching smoke rise from the Pentagon from their school windows atop Mt St Albans, the highest point in Washington DC.

I am curious to know how, or whether, they sense it has affected them. It has had an effect on my own daughter. Of course things are changeable, especially for the child of a conservative father and liberal mother, but when I asked her why she, practically alone among her Upper Northwest DC limousine liberal classmates and teachers, was willing to call herself a conservative, her answer was unhesitating.

"Liberals," she said, presumably referring to her endlessly politically correct private school , "always want to tell you what to do and what to think, but then they don't even keep you safe."
I don't think that's exactly fair, and I tell her so, but Democratic Party leaders might want to keep her sentiment in mind: for her, smoke still rises from the Pentagon. It is the defining moment in her political experience and it wouldn't surprise me if it were all her life long.

My own contribution to this fifth anniversary is to look back at what I wrote in the Times Literary Supplement (London), five years ago in its commentary the week following 9-11. It is a meditation on just war theory, a rejection of criminal law models followed by the Clinton administration but shown deficient in the collapse of the Twin Towers, and a call for war. Does it still stand up today? I think so but maybe I am mistaken. Here at SSRN (go to page bottom to download pdf).

Avoiding the pendulum swings of Congress and the president

Dana Priest writes in a WP story appearing tomorrow, Thursday, September 7, 2006 that:

the administration will ask the intelligence committees to give it guidance to draw up a separate, shorter list of harsh techniques it might still employee under certain circumstances.
The point, said one senior official, "is to make the program more durable" and not "subject to the pendulum swings" of Congress or the president.

This seems to me a very good idea. It is an instance of what I have been hoping for in this NYT magazine essay:

... the Bush administration should mark well that what lives by executive discretion also dies by executive discretion. If a comprehensive national counterterrorism policy — that is, a war on terror — is as important as the White House believes it is, then it merits the blessing of the legislature and ought not to exist merely at the discretionary whim of some future president.

Useful blogosphere analysis of yesterday's Bush administration war on terrorism proposed legislation

(Update, September 17, 2006. I have an additional post on why and to what extent it is okay and not okay, and indeed required, for Congress to define the meanings of terms in Common Article Three, here.)

Law professors have been busily at work dissecting the Bush administration's offerings yesterday in the war on terror. Julian Ku at Opinio Juris, here, discusses Congress's power to determine what US domestic law is, even where it in effect provides interpretations of international law obligations of the US that are not what the (nebulous and let's just be honest and say European) international community's view of that is. Julian notes that this is simply the result of the last in time rule, if nothing else. Note particularly the reactions from abroad in the comments - which, while all admirably civil, range from politely puzzled to politely appalled. Marty Lederman also comments as well - but the place to go for Marty's analysis of the proposed legislation and the new army manual is over at Balkinization, here, here, and here, and I'm sure more to follow. Over at the new National Security Advisors blog, Bobby Chesney provides a very useful thumbnail guide to the proposed tribunal legislation, here.

I don't understand, really, why all the moves the White House is making now could not have and should not have been made two years ago. I don't say this, of course, as someone who believes the whole war on terror thing basically wrong, but instead as someone who thinks it instead overall right as a policy. I still don't understand why it would not have been better to have done this two years ago. All it appears to me is that it was held hostage to the executive discretion wing of the administration, to the detriment of the pursuit of the war on terror.

I also think, actually, that the administration would have done best from day one to have said

• The Geneva Conventions apply;
• The Geneva Conventions apply even to unlawful combatants, not to give you either POW status under GC III or civilian status under GC IV, but instead to give you the legal status of unlawful belligerent punishable as such and for related actions under the laws of war;
• Although not technically required under GC III, Article 5, detainees would receive a screening Article 5 hearing upon detention in accordance with 1997 DOD regulations concerning same to determine whether they were lawful combatants, civilians, civilians to be detained as security risks per GC IV, or unprivileged belligerents;
• Trials for unprivileged belligerency and related unprivileged action would taken place under rules meeting at least the minimum specified under the limited protections provided by Article 75 of Protocol I, which the United States acknowledges to be customary law - and the United States might, in its sole discretion, provide greater rights to defendants than required by Article 75, but is under no obligation to do so;
• The United States would meet, as a matter of policy but not law, the minimum obligations of Common Article 3, and would treat those as applicable to all detainees without regard to the technicalities of international versus non-international armed conflict; the United States would take the view that, as a matter of law, Common Article 3 on its own terms does not cover armed conflict taking place transnationally with non-state actors (contra Hamdan);
• The US Congress shall pass statutues defining what specific conduct, under what specific circumstances, and by what specific agents, for purposes of US law, meets or does not meet, the requirements of the abstract and not entirely self-explanatory language of Common Article 3 or, for that matter, the Torture Convention. The reason for requiring Congressional votes on specific practices is that although some may consider it facially obvious what is permitted or not permitted under CA3 or the Torture Convention, it is quite evidently not something plainly obvious to the American people. It is not something on which we have moral, political, or legal consensus. Indeed the public is deeply divided when it comes to assessing whether specific practices can ever be justified or not (as reaction to President Bush's speech yesterday indicate). In case of such deep substantive division in a democracy, I think there is no principled approach to resolve it except by democratic procedures; therefore, let the people's representatives vote, raise their hands and tell us what is okay and not okay, andunder what specific circumstances, with specificity, and without evasion or euphemism or cant;
• The US Congress shall provide by legislation that the Geneva Conventions are not self-executing;

... as a start.

In fact, I think the US government goes way overboard in creating so many concrete rights and procedures. Methinks it doth protest too much with all the procedural niceties it loads into its tribunals. But it gets itself into all this stuff because it starts from the assumption that its obligations essentially are domestic law in nature and that it must justify any departure from what would be required in a civilian trial or, alternatively, in a full blown military trial under the UCMJ. I don't think that is the starting point at all.

The starting point, on the contrary, should be the minimum required - and it is pretty minimum - under Article 75 of Protocol I, accepted by the US as customary law. It should offer to justify nothing more than that it meets the standards of Article 75 and, beyond that, anything it chooses to do is merely a gift. The "international community," so called, would whine - the human rights groups would try to commandeer the interpretation of Article 75, but no matter. Its language is pretty straightforward. It was a mistake for the administration ever to have denied the application of the Geneva Conventions, given that they lead quite directly the the minimum requirements of Article 75 - and a huge mistake to allow the debate to enter into constitutional territory that has dragged the discussion into matters about criminal law, procedure, and so on that do not fit the circumstances of the war on terror, at least insofar as they do not deal with citizens of the United States. Put that way, I suppose I might be said to be in agreement with Peter Spiro's argument about international law, in Opinio Juris, here - although I would not quarrel with Peter responding that this is the devil quoting scripture for his own purposes.

And I should add that the responsibilty for winding up in this complicated denouement lies with the Cheney wing of executive power - Addington - holding out for an interpretation of executive discretion that conspicuously fails to win over even Justice Scalia - and thus costing far more important legal arguments pertaining to the war on terror. If you think, as I do, that the war on terror is as important as the Bush administration says, as recently as yesterday, it is, then these guys have a lot to answer in losing legal battles over the nature of that war.

The central question remaining out of that is under what circumstances detainees must be released, if any. If they are tried as unlawful belligerents and found guilty, then they can be sentenced as such. But still, that leaves open other categories of people - including, at least in theory, lawful combatants who may be held until the cessation of hostilities. The point is that you can't really answer this question unless you determine what constitutes the end of a war on terror, or if it is a war in the legal sense applicable to such questions as end of hostilities.

I do not think that it is okay to simply say, there's a war on terror, it could go on forever, it is global as to space and location, it excludes nothing and nowhere - but to that we can apply detention concepts that, as a historical-legal matter (as Adam Roberts points out, never irrelevant in the legal interpretation of the laws and customs of war), are about wars at least somehow confined in time and space. There have to be some ways of placing limits on the concept of war here, at least in the legal sense as applicable to the war on terror. It's a further question as to what branch of government ought to answer that question in the American political system - I am dubious that it should be the Supreme Court - but I am equally skeptical about saying it is all executive discretion. I think, actually, that the process requires legislation to determine what the "war" means legally, including when it ends.

Perhaps this is all water under the bridge now - we have spent years elaborating an administrative tribunal process under certain assumptions that largely derive from domestic law considerations and practices. But perhaps it might still be relevant, for example, in persuading Senators McCain, Graham, and others not to pursue their own tribunal formats based around even more "domestic" law models.

Jean-Marie, happy fifteenth wedding anniversary

Jean-Marie and Renee, looking out a window in the Musee d'Orsay, Paris, 2004. (I've posted this photo before - I like it a lot and, after all, I took it!)

Jean-Marie, happy fifteenth wedding anniversary!

Jean-Marie (left) and Renee (right), Paris, 2005.

Jean-Marie, happy 15th wedding anniversary

Jean-Marie left, Renee right, happy fifteenth wedding anniversary, J-M! London, June 2006.

Jean-Marie, happy anniversary

This snapshot was taken in London, June 2006. Happy anniversary, my dear!

A flood of counter-terrorism legislative proposals?

The Bush administration seems to be proposing a wave of legislation on various aspects of counter-terrorism policy. Reuter's reports - of course this is Reuter's, so one must be cautious about accuracy, but we can see tomorrow - that Bush will unveil proposed legislation dealing with detainee tribunals. And the White House has released a new counter-terrorism strategy document, discussed by Austin Bay, here (thanks Instapundit). I'm still digesting this stuff, and won't attempt to respond now.

Comments to "It's Congress's War, Too" in Sept 3 NYT Magazine, starting with Marty Lederman

Let me use this space as a place for comments anyone wants to make. I will periodically repost substantive things people write in the comments section (whether to this post or the one below, which has excerpts from the essay) into the main body of this post so they are easily accessible. We'll start with Marty Lederman's comments - although we sometimes (often?) disagree, Marty's thoughts are always worth reading - and these are no exception.

My thanks to Glenn Reynolds and Instapundit for mentioning my NYT Magazine piece today, It's Congress's War, Too - and Real Clear Politics, also. And anyone else who has linked to it.

[Also, I want to thank my editors on this short essay at the NYT magazine - Scott Malcomson (not just a superb editor, but also author of important books you should read - e.g., Empire's Edge: Travels in South-Eastern Europe, Turkey and Central Asia, and the brilliant (and I don't mean that lightly) One Drop of Blood: The American Misadventure of Race), the magazine front section editor Alex Star, and my old, dear friend Gerry Marzorati. I am perfectly aware, thank you very much, that writer-editor etiquette frowns on PDA because, after all, these guys are all serious professionals, at the top of their game, and they do this for a living everyday, and this was in fact a short, modest little essay - but actually, I don't care about breaking etiquette, because they did a great job, particularly Scott, who guided it through, and they deserve public thanks. So thank you.]

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Reader Comments:

Marty Lederman writes:

Very nice column, Ken. I agree with much of it, even though I'm not terribly sanguine about the legislation that we will see proposed in Congress in the next couple of weeks.

Two minor, but important, qualifications:

1. The general thrust of your piece is a sentiment that many folks share, which is that Congress has been AWOL. You claim that "two branches of our government are hard at work" -- the Executive and the Judiciary -- and ask "where are the people’s elected representatives in all this?"

This is an odd question to be asking , given that every single relevant Supreme Court case -- Rasul, Hamdi, Hamdan, etc. -- has turned on *construing statutory rules* -- and that there are a veritable slew of statutes (and Senate-ratified treaties) already dealing with most or all of these issues in extensive detail. See, e.g., FISA (including several post-9/11 amendments), the Torture statute, the Geneva conventions, the UCMJ, the War Crimes Act, the PATRIOT Act, the assault statute, the DTA, the McCain Amendment, etc.

The problem is not that Congress has been silent -- the U.S. Code is teeming with laws regulating all of the areas you identify, including as applied to the conduct of war -- but instead that the Administration has refused to follow the rules laid down by duly enacted statutes, has tried its damnedest to keep its conduct secret from Congress, and, to the extent it believes pre-existing statutes are ill-suited to the new war(s), has failed to ask Congress for amendments. (Whenever the Administration has asked for statutory developments, e.g., the PATRIOT Act, Congress has been quick to respond.) All of which is to say that the accusatory finger is pointing at the wrong branch.

2. Second, in the interrogation section, there's the suggestion that the key question is what constitutes "torture." But we are party to treaties that also prohibit all "cruel treatment" (Common Article 3) and "cruel, inhuman and degrading treatment" (the CAT, not to mention the McCain Amendment). Although the due-process-based standards for the latter are (unfortunately) vaguer than they ought to be, in light of the Administration's strained reading of the due process precedents, the CA3 ban on all "cruel treatment" (not to mention "outrages upon dignity") is a fairly good starting baseline prohibition, and my understanding is that there are fairly clear understandings under Geneva as to what constitutes "cruel treatment and torture." In my view, no statute is needed to add to that prohibition. What the Administration wishes to do, of course, is to *authorize* the CIA to engage in "cruel treatment," i.e., to authorize violations of the Geneva Conventions. See http://balkin.blogspot.com/2006/08/cia-cruelty-authorization-act-of-2006.html. Personally, I think this would be a bad idea. This is one area in which the better course of action would simply be for Congress to embrace the post-Hamdan status quo, i.e., to affirm our commitment to abjuring the use of cruelty against those in our custody.

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Anonymous writes:

I want to flag the following passage from O'Connor's 2004 Hamdi opinion.

While the Executive Branch is always quick to cite Hamdi as upholding its broad authority to detain enemy combatants (subject, in the case of a US citizen held in the US, to some procedural due process protections), it's important to remember that the Court based that part of the holding on STATUTORY grounds, never reaching the Government's inherent authority as commander in chief arguments. Specifically, it held that the AUMF must have been intended to authorize detention of enemy combatants in accordance with traditional practice in warfare. This was one of the points Marty Lederman makes in his comment on your piece.

What's striking, however, in re-reading O'Connor's opinion is actually how narrowly it may be thinking about the current "war." One can see the difficulties the Executive Branch may have in relying on it in the long-term. She seems to be thinking about the armed conflict (much as many Europeans do) as restricted to hostilities in Afghanistan against residual Taliban forces. In the event that US forces draw down from Afghanistan or, perhaps someday, capture bin Laden, it is not at all far-fetched that the Court would read the AUMF's implicit detention authorities very narrowly.

In that event, the Executive Branch might be left relying on inherent powers arguments, which haven't been tested yet, and are not one's I'd want to roll the dice on...

Here's the passage from Hamdi:

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the [***594] use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is [**2642] not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, (... available in the Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

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From Lawrence L.:

Dear Mr Anderson:

Please stop using the phrase "the war on terror." It appears in your first paragraph in this Sunday's NYTimes Magazine. Here are the reasons for this request:

Why "War On Terror" is not an accurate use of words

There is no such thing as a “war on terror” or “war on terrorism.” It is a stupid statement, and I'll explain why in a moment. I don't mean that as a pejorative. And to repeat it, or give it any credence, is to help spread a lie, a deliberate attempt at propaganda, or a statement by a person who does not know what he or she is talking about. I find that the newspapers and television, as well as “blogs” on the Internet, all use the phrase “war on terror” and it does everyone a disservice. Google alone states that there are 137,000,000 references to this phase.

When our President, George Bush, says those words, he is talking non-sense. So is anyone else using these words. The reason I am writing this article is to explain this phenomenon.

The words are inflammatory, and their ultimate effect often deliberately to cause people to suspend any rational judgment about the things the speaker wants to do because of this so-called “War on Terror.” When rational judgment is suspended, people will do anything no matter how ineffective it is because of the emotional mind-clouding power, and the fear it gives rise to, when such meaningless words are used.

It is also extremely sloppy journalism to repeat this phase, except as a direct quote, because it is meaningless. It is as meaningless as “war on laziness” or the “war on weather.” Journalists seem never to have heard of semantics, or an "abstraction ladder", which looks at the meaning of words and how their use affects us.

Right now, we as a country are involved in a number of situations, one or two very separate wars, some diplomatic efforts, and a very diverse set of circumstances that may possibly threaten our way of life, and we, as a country, appear to be afraid of a number of diversified groups of people who reside in various countries. We are also, as a country, possibly threatened in a number of ways by a number of countries, as opposed to small scattered groups of people.

If we can define what these groups and countries are and distinguish how they differ from one another, it can help us to understand what we’re doing, why we’re doing it, and what the characteristics of all this mixed up “war on terror” might really mean. This, of course, immediately implies that there is no one single opponent against whom we can wage war, but instead presents a variety of different situations, some more dangerous than others, each of them requiring that we handle them, as best we can, in different ways if we want to reduce any threat they pose. ·

The first group of people that we claim to be fighting with is a vaguely defined group, once led by a man named Bin Laden, that calls itself Al Qaeda. It appears to be based in Afghanistan, but may have spread to various other countries. It is a loosely-knit, guerrilla group that dislikes “the West”, vaguely defined as European and American countries. We don't know nearly enough about it to be “at war” with this group because it is so diffuse, and it is all too easy to confuse it with other groups at times. It is not certain that its leaders are alive or have control over this group because it is so diffuse. Originally, it was most probably responsible for the event known as “9/11”. We, as a country under President Bush, claim to be fighting this group but appear to have lost interest in pursuing this group forcefully.

I say “claim to be fighting” because, for all of our efforts, we have never caught Bin Laden, and Al Qaeda appears to be stronger than ever before. We have troops in Afghanistan, but they appear to be there mainly poised to defend the central government, which has been threatened by a number of groups including the Taliban (the prior totalitarian government), war lords in various provinces, and a loose network of guerillas including the Al Qaeda group. The current Administration, led by President Bush, has apparently de-emphasized our military efforts in Afghanistan and his rhetoric, his use of the words “war on terror”, appear to be mainly directed at Iraq, not Afghanistan.

The number of deaths of U.S. troops killed in Afghanistan in this first military operation is 255 with 765 injured as of January 2006, as tracked by Wikipedia. I cite this figure in sharp contrast to the number of U.S. troops killed in the next military effort, still going on today, in Iraq which was 2,299 U.S. soldiers killed and 33,094 seriously injured as of March 2006 (cited at the site [not sure this link works]). The disparity between Afghanistan and Iraq, in terms of dead and casualties is very revealing about what is being emphasized. ·

The second group that we were fighting was the Saddam Hussein regime in Iraq. It was a war declared by President Bush, with no real resistance from Congress. The enemy was a vague one – mainly the dictator, Saddam Hussein, who somehow had Weapons of Mass Destruction (WMD) and was linked vaguely to “terrorists”, the same ones named in Afghanistan as being Al Qaeda. None of these reasons has proven to be true. I repeat: None of the reasons given for this war have been proven to be true. As cited above, more than 2,000 U.S. soldiers have been killed in Iraq as a result of this war. Because of what the President and his Administration have been saying, and repeating as a mantra, according to many surveys, many people in the U.S. believe, irrationally, that this war is being fought as a “war on terror.” This is simply not an accurate or true statement.

It appears that Iraq has three major ethnic groups that have never gotten along. When Saddam was in charge of the country, the Sunni controlled everything with an iron hand. The Shiites, although in the majority, had no political power. The Kurds, the third group, also had no power. Once Saddam’s forces were overcome by the U.S. forces, the Shiites grabbed political power, the Kurds grabbed the northern part of the country, and the Sunni who had control and resented losing it have begun conducting an insurgency. The Shiites and the Sunni both have deep hatred of each other; it is obvious that the Sunni aren’t used to being out of power, and the Shiites resent all of the terrible things that were done to their people when the Sunni were in power. This is has led to brutal killings, with our troops in the middle, mainly siding with the Shiite majority. The country at this time may be in civil war.

Our troops really aren’t fighting “terror” or “terrorists” here. They are actually intervening in an internal conflict that has been going on for a long time back to when England and Winston Churchill was involved. I will add that there have been instances of non-Iraqi individuals crossing the border into Iraq from Syria and Iran to attack American military forces, and some of these individuals may be linked to Al Qaeda, but that is not the biggest part of the problem. In fact, because of our invasion of Iraq and our destruction of the status quo, by eliminating Saddam Hussein, it may be that we have opened a whole new breeding ground for, and encouraged, these individuals to learn how to operate successfully and conduct terrorist operations. Iraq thus appears to be involved in a civil war of Sunnis versus Shiites, with Kurds protecting their interests, and some outsiders conducting guerilla terrorist operations aimed at fomenting unrest and driving the U.S. forces out. We cannot be involved in a “war on terror” here because there are at least four separate parties here, and it isn’t always clear who is doing what to hurt or kill whom. ·

A third arena whom we are not fighting is North Korea, a dictatorship that is working to build an atomic bomb capability. This country is a military threat to South Korea because it possesses a huge standing army of more than a million soldiers. It is a country with a well-defined government, not a loosely organized group of individuals. We have not declared war on them, nor have they declared war on the U.S. But for some reason, at times, they have been included in this “war on terror.” ·

A fourth arena that is also sometimes referred to under the mantra of “war on terror” is Iran. Iran is the largest country in the Middle East, with a government that is primarily run by its religious right. They may provide a place for Al Qaeda and other groups which dislike the U.S. for various reasons to develop and train members. We are not at war with Iran, and they are not at war with us. But, for some reason, they also have been lumped into this “war on terror”. ·

There are other places in the world, such as South America and the Philippines, that have been also lumped into this “war on terror”, but, again, we have not declared war on them nor have they declared war on the U.S. Numerous groups, some of which hate the U.S. and some involved in insurgencies against their existing government, have the earmarks of “terrorists” in that they conduct underground operations, kill people indiscriminately, have loose organizations, may or may not be linked to other similar organizations. ·

In general, it is also important to separate different types of terrorists (a very maligned word) into specific and different groups. For example, Basque separatists, in Spain, commit what we would call terrorist acts. So do the Tamil Tigers in northern Sri Lanka. They can both be called “terrorists.” Please note that, although these groups commit acts that seem to be terrorist acts, such as blowing up bombs in public places and killed innocent civilians, both of these groups are internal in their countries and act much as if they were engaged in a civil war against their existing government. ·

So we are not at war with all of the groups I’ve mentioned. We couldn’t be. Many of them have no government for us to declare war on. It is sloppy use of communication to say that we are engaged in a “war on terror” when we really need to understand that there are many such groups around the world, each separate and different, each requiring different tactics, each posing a different type of threat (in some cases, no threat) to our country.

Please remember that next time you hear these words. If you understand what has been said here, you will be able to determine how absurd such a claim is (“war on terror”) and look at what the person saying these words is really trying to do. He or she may be trying to scare you so you don’t think clearly; he or she may be pushing an agenda to take rights away from you; he or she may be saying such words to get elected again; or to be considered “patriotic” or “strong” or “effective”. Always listen to the words and match them to the actions. The outcome may surprise you and open your eyes to what is actually going on.

Legislating the war on terror - my piece in the NYT Magazine

Shameless self-promotion, I'm afraid, but I do think the issue is an important one, especially in the run up to the November 2006 midterm elections. Where, oh where is Congress in legislating counterterrorism policy? Congress has to take responsibility for policy in the long term war on terror, the struggle against terror that outlasts this administration and likely the one after that.

We're a democracy; something this big and this important has to be established by the people's representatives - and that's true whether you believe, as I do, in an aggressive, forward, offensive-based war on terror and think the Bush administration's overall thrust of policy fundamentally right, or you think it's not a war at all, shouldn't be conceived as a war, and needs to be something else altogether.

That's the topic of my piece in the Sunday, September3, 2006 issue of the New York Times Magazine, It's Congress's War, Too." It's a short, op-ed length piece. If you want to make comments on the piece, feel free to do so here at this blog. Excerpts:

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Idea Lab
New York Times Magazine
Sunday, September 3, 2006

It’s Congress’s War, Too

By KENNETH ANDERSON

Two branches of our government are hard at work in the war on terror. Sometimes, to be sure, they work at cross-purposes. Executive agencies devise a warrantless surveillance program — and a federal judge declares it unconstitutional. Administration officials and federal bureaucrats devise rules for trying accused terrorists in military tribunals — and the Supreme Court, in its Hamdan decision, sends the tribunal drafters back to the drawing board. Yet for all their differences, the executive and judicial branches each have important roles to play in establishing U.S. counterterrorism policy.

But where are the people’s elected representatives in all this? After all, the Hamdan decision, despite leaving many momentous questions open, makes one thing reasonably clear: responsibility for democratically establishing policy in the war on terror falls to the legislative branch. So where is Congress? Irrespective of where you come down in the debate on the war on terror — including whether it should even be conceived of as a war — counterterrorism policy should be formed through Congressional legislation, the only legitimate mechanism for the long haul in a democracy. This ought to be a priority for both Congress and the Bush administration, because no matter who wins the 2008 election — or the 2006 midterms — there is not likely to be any coherent national counterterrorism policy at all past the end of the second Bush administration unless Congress takes steps to legislate it and go beyond merely executive discretion.

Some in the Bush administration have fixated on this question of executive discretion, insisting that the successful prosecution of the war on terror requires strong executive power — power they see as eroding since Watergate. But in considering its next move, the Bush administration should mark well that what lives by executive discretion also dies by executive discretion. If a comprehensive national counterterrorism policy — that is, a war on terror — is as important as the White House believes it is, then it merits the blessing of the legislature and ought not to exist merely at the discretionary whim of some future president.

What would comprehensive legislation to institutionalize national counterterrorism policy look like? Counterterrorism can be construed to cover almost anything you like — this is why it can so threaten civil liberties. But those policies that matter most are the ones that bring America’s basic values into the struggle against terror. Such policies have deeply divided the American people and deserve answers whose democratic legitimacy can only come from the people’s representatives.

Surveillance at home and abroad

Whatever you think of the legality of, for example, the National Security Agency’s surveillance programs, or Judge Anna Diggs Taylor’s ruling of unconstitutionality, Congress needs to decide plainly on the balance between national security and civil liberties that such programs represent. A deal is in the works that puts oversight into the hands of the Foreign Intelligence Surveillance Act court. But the bottom line is not so much who does the oversight as something more basic: if you are reasonably thought to be calling numbers reasonably thought to belong to terrorists abroad, the American people expect their government to try to listen in.

Detention and rendition

The Bush administration claims the right to hold detainees in the war on terror for the duration of the conflict. Its critics counter that the war in question is defined so loosely that you might as well say that detainees may be held until the global war against evil is won and it is banished from the world. Guantánamo has received much understandable criticism; the administration’s critics in turn can be questioned for imagining to themselves that the Bush administration’s detainees are luckless shepherds. Some are; some aren’t. Even Human Rights Watch acknowledges that some “really bad guys” are being held in secret C.I.A. centers abroad. These are serious jihadists, not people to just turn loose. Who should decide how to handle this? Under any administration, serious counterterrorism policy will recognize that people will, in fact, be detained, and we have to have a place and a manner for dealing with them. Only the very wishful can believe that the issue will go away or that it goes away merely by closing Guantánamo.

A domestic intelligence agency

Does the U.S. need a dedicated domestic intelligence agency, similar to Great Britain’s MI5, rather than relying on the F.B.I.? The F.B.I. excels at solving crimes that have already been committed. It is not good at, and not really interested in, finding needles in haystacks. Yet this is precisely what much intelligence work is about when it comes to preventing terrorist attacks rather than investigating them afterward. Establishing such an agency would be an unprecedented and potentially liberty-threatening step, never before seen in this country. Does the threat of catastrophic terrorist attacks — possible plots against the Sears Tower or New York City tunnels, to take two recent examples — warrant a whole new system of domestic intelligence?

Interrogation and the definition of torture

Of all the values issues in the war on terror, none have aroused such strong emotions as interrogation and what crosses the line into torture. The anguished discussion over the possibility that information crucial to preventing the London airline plot was obtained in Pakistan through harsh interrogation, perhaps torture, only raises the stakes. In order to go beyond the abstract phrases of existing laws and treaties, Congress must be willing to legislate what exact techniques are permissible, under what circumstances and with what oversight — not euphemisms, not ambiguous language, but plain, exact descriptions of techniques and when and how they may be used. Is waterboarding, for example, torture? If it is, then Congress should say so without reservation. If it is not and if it is merely “harsh” treatment, should harsh or physically coercive interrogation ever be permitted? If harsh or physically coercive interrogation is ever permitted, then Congress should say exactly and in precise detail when and how it may be performed by American authorities and upon whom. These activities are too morally fraught to permit anything other than the on-the-record vote of each legislator. Let our legislators tell us plainly what tough trade-offs they make between our security and our liberties — because indubitably there are trade-offs.

Reforming the classification system

The statutes for classifying information are inimical to the First Amendment in their vagueness and overreaching — and they have not been consistently enforced. The entire classification system needs to be revamped, first to cut down by whole orders of magnitude the amount of material marked as classified in the first place and second to create meaningful and enforced legal penalties for revealing what is left.

A special counterterrorism court system

Should terrorism cases be quarantined in a special court system? If not, there is a danger that terrorism could become the tail that wags the dog of justice, risking civil liberties across our whole legal system. If we insist on using a judicial system tailored to ordinary criminals to deal with those who are both criminals and enemies of our political order, then we risk dragging down the entire criminal justice system to the level necessary to contain the terrorist threat — or we risk not dealing with the threat at all. When it comes to those who deviate from the social order, we should not sacrifice the nobler aims of the criminal justice system — including rehabilitation — because we have no choice but harshness in dealing with terrorists. We do not owe those who declare themselves enemies of our constitutional political community, and then pursue their war with the most criminal means, the same moral or legal obligations we owe to ordinary criminals.

It is unlikely that the House and Senate will conceive of far-reaching counterterrorism legislation before the November elections, when many things may change. And even after November, it is unlikely that a deeply divided American people and its representatives will be able to achieve the kind of legislative “consensus” that nonpartisan pundits often call for. But perfect consensus should not stand in the way of democratic choice. This is a democracy — let legislative majorities, Republican or Democrat, make decisions. In any case, the Bush administration, as it says goodnight, ought to consider that the war on terror will over time amount to little if it is unwilling to go to Congress to ask that it be enacted as the policy not of the Bush administration or of any administration but of the United States.

Kenneth Anderson, a research fellow of the Hoover Institution and a law professor at American University, was legal editor of “Crimes of War” and is completing a book on global governance.