[JK: Deleted and IP banned.]

Perhaps this is an aside but it is an issue that has not been given enough consideration on this point.

Here's Tom's quote from the thread you reference, and my amendment that adds an important detail that may have been left intentionally vague.

"The problem is that torture works too well [*], and that creates a constant temptation to keep on using it.

*....as a propoganda tool for the torturing governments.

----

Now, back to an issue closer to the topic.

I would like Trent and/or Mr. Holsinger to address this simple question regarding the people who are captured by US forces or CIA operatives abroad:

How are the rights of innocent captives addressed?

This may not be central to the issue of whether to support the McCain Amendment, but I have noticed reading down through the threads the constant reference to captives as "terrorists" and other statements with the built-in presumption of guilt (E.G., Those on the other side are the enemy and only have the terrorists interest at heart.)

This is not a "Leftist" issue, it is a Humanitarian one.

Dan,

One of the things going on here is enormous institutional resistance to overt formal change in institutions. It has been obvious for four years that existing intelligence and legal institutions are inadequate to deal with the war on terror, but note how there have been zero, zip, nada, overt formal changes in them to do so.

Because they don' wanna go there.

The McCain amendment is another expression of the need for such changes, and it cannot be safely implemented without truly vast overt formal changes in our intelligence and legal institutions of the sort that Professor Rishikof advocated with his proposed national security court. I have my own ideas on this, which were published on Strategy Page and copied by Rich Lowry in National Review's Corner:

http://www.nationalreview.com/thecorner/2002_06_16_corner-archive.asp#85180657

"I DON”T KNOW… [Rich Lowry] …if this idea is workable, but Thomas Holsinger is on to an important problem. Why were we arguing about whether or not to search Moussaoui, an illegal, in the first place?

"This leaves, however, the unspeakable elephant of immigrant alien surveillance and control sitting in Homeland Security's waiting room. With rare exceptions, citizens aren't our foreign terrorism threat. Resident aliens - legal and illegal - are the threat and no one, not even General Odom, has addressed this defect in the Homeland Security Department's organization.

The Supreme Court long ago ruled that resident aliens are entitled to the same constitutional protections as citizens. This was done for expedient reasons - letting police and prosecutors deny constitutional protections to aliens imperiled the same protections for citizens. But "[t]he Constitution is not a suicide pact." The lives of citizens are now directly threatened by resident aliens, while the constitutional rights of citizens are imperiled by security measures created to protect against resident aliens. The law must change to reflect these developments.

The new Department of Homeland Security would be more effective, without harming citizen rights, if aliens lack full constitutional protection, for offenses committable only by aliens, which it has exclusive jurisdiction to prosecute. State and local police, the FBI, and state and Justice Department prosecutors, would have to give aliens full constitutional rights during investigation and prosecution of ordinary offenses, as citizens can be charged with those too. But Homeland Security law enforcement officers and prosecutors wouldn't have to do so for offenses under laws which apply only to aliens."
Posted 4:46 PM | [Link]

While there would be complications when a given investigation turns up citizen involvement, those would be much easier to deal with once the major part of the problem - full constitutional protection for resident aliens - is adddressed.

We wouldn't need new courts. Existing administrative law judges would handle ordinary immigration problems. Existing federal judges would hear most charges brought by Department of Homeland Security prosecutors. The proposed special military tribunals would try extraordinary cases.

Most lawyers who have published articles on legal issues raised by the war on terror agree that some form of secret court is necessary. Nothing like that has happened in four years because of institutional inertia.

Andy,

Which innocent captives? Hypothetical ones whose definition is so malleable that your question is just rhetorical?

You must provide some specifics. Name a country in which the captives are captured, state which nationality the captives are, the nationality of the force which captured them, and how they then got into American custody. Context is everything in this situation.

We're not sending Polish commandos into Switzerland to kidnap Italian tourists for interrogation at Guantamano.

Andy:

While Tom and Trent and I are not on the same page as far as the effectiveness of torture, I think that we're all pretty much on the same page as far as the people who have been listed as currently being held at CIA detention facilities. Even Amnesty International and Human Rights Watch have more or less acknowledged that what we are dealing with is some very bad people (several of KSM's equally murderous close relations, for instance), it is their proposed solution (handling these people through the standard criminal justice system) where we part ways since so doing would almost totally negate their intelligence value to us.

#4

I am talking about a hypothetical situation, because as far as I can tell, laws are written on the basis of such conditions. And it is anything but a rhetorical question because I myself do not know how these things are handled, or how you think they should be handled.

While the situation may seem very clear in the case of a combat soldier or enemy combatants wearing a uniform or shooting at US soldiers, or civilians, it becomes less so as one moves out from this situation.

Let's take a hypothetical situation: A prisoner captured in Iraq as an insurgent mentions the name of another indivual they claim is an "officer" or is otherwise involved in the insurgency, or as a terrorist. An individual with the same name is picked up on the streets of Rome by the CIA and detained. But other than the testimony of the prisoner, only very weak or circumstantial evidence supports his claim, and the prisoner himself proclaims his/her innocence. What recourse does this individual have?

Of course, this situation grows even more hazy if the captive revealed the name under torture. I would have serious worries about the veracity of information obtained under such circumstances, as does our own intelligence, law enforcement and military communities.

I am asking this because, even though I do not dispute that the vast majority of US captives at Gitmo or elsewhere are probably there for a good reason, there can be little doubt that there are many that aren't.

It is these people I'm worried about, and I really want to know what you all think we should do about them? Do they have any Rights?

Andy, you're assuming that a person in Rome would be picked up by the CIA simply because a captive in Iraq gave a name and he has the same one. On what basis? I suspect the CIA needs a little more evidence than that before they accost people on the street and take them into custody.

There's seems an implicit assumption in your questioning that surely some of these people must be innocent. Why? The people in Guantanamo were captured on the battlefield (as far as I know) and, even as prisoners of war (which is how we treat them) they have no right to trial because they haven't done anything wrong other than to fight against us. By definition, a POW is confined until the end of conflict.

Furthermore, a number of Guantanamo captives have been released only to be killed in Afghanistan (and even Iraq) or captured again under similar circumstances. I would say the burden is on those who insist there are innocents there to provide some evidence that indicates this is the case.

Andy,

Your hypothetical just showed how unreal your assumptions are.

Agents of the United States do not grab people off the streets in foreign countries when we have diplomatic relations without the knowledge, consent, permission and approval of their governments. This applies in particular to their own citizens. We have diplomatic relations with Italy. Furthermore you have not identified the nationality of the person nabbed.

Note that what many governments say in public often differs from what they say in private. I am aware of the instance you refer to. Note that no official of the Italian national government has accused the U.S. of a treaty violation concerning this incident, which would have happened had the CIA not had the permission of the Italian intelligence & counter-intelligence organizations.

Furthermore foreign newspapers are far more careless about the truth than even CBS's "fake but accurate" policy, and far more hostile to the U.S.

If you persist in believing what you read without trying to read between the lines, then believe this:

You will give me all your money now.

Can I have some of his money too, Tom?

If the interogators are subject to civli suits it is because Congress and this coward of a President aren't doing their jobs.
The Congress isn't doing their job for two reasons. One institutionally since FDR the Congress has been reactive as opposed to proactive. Even the President has said this is a new kind of war. This means congress uses its advise and consent responbility to pass newl laws to meet this challenge as opposed to letting the President vet himself(John Yoo isn't that the same name in Dune whom betrays the Atredies line).
For the President his cowardice is in his lack of understanding of anything. Instead of telling the American people not only are we in a new kind of war but we must adjust our laws to respond to it(here he only need ask as Congress is controlled by the Republicans in both houses), he treats us like children and tells us its only something he can fix. It is like your father telling you because once you reach the age that tells you you know your father is doing it for reasons you do not understand or know yet he will not tell you what they are. You become resentful and frustated.
We do not need this from either institution.

Andy:

I think you want to apply criminal justice system concepts to a war; something that would have been unthinkable before 9/11, but is becoming realty today. In my mind, you might as well ask what legal precautions the soldier should take before raising his gun.

As to the rights under the McCain Amendment, they bar "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States."

The Eighth Amendment of the Constitution bars "cruel and unusual punishments," which the SCOTUS has explained only protects those convicted of a crime. This provision does not protect people in jail awaiting trial -- those people are not being "punished," they are being detained.

The due process clause of the Fifth Amendment protects people awaiting trial. People detained awaiting trial should not be punished at all (otherwise why have a trial?). More importantly, the process due a criminal suspect includes freedom from government efforts to coerce information from him/her. Here's a summary of court decisions, but I find this discussion pertinent:

Similarly, Ward v. Texas, voided a conviction based on a confession obtained from a suspect who had been arrested illegally in one county and brought some 100 miles away to a county where questioning began, and who had then been questioned continuously over the course of three days while being driven from county to county and being told falsely of a danger of lynching. ''Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion'. A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.''

If you read the annotation further, you'll find that the uncertainty about whether statements were coerced or voluntary eventually led to the Miranda decision and the obligation of reading the criminal suspect their Miranda rights.

I'm not sure the 14th Amendment has any further significance.

So whose against coercion?

Andy,

One of the reasons the suspect's nationality is so important is that the U.S. govt. always checks with terrorist suspects' own governments to learn what it knows concerning them before taking any action, unless the government is hostile to us.

You assumed that did not happen in this instance, you assumed that the Italian government was not at all involved in acitivities on its own soil, you assumed that the U.S. govt. acted on very little information about the suspect (which in turn assumes that we have the intelligence resources to waste on suspects with so little evidence against them), etc.

You keep piling on unlikely assumptions. Furthermore all of those assumptions come from a particular point of view - that the U.S. govt. will do stupid bad things with very little reason.

The real problem consists of your one-sided, anti-American, assumptions. Which are as plausbile as an assumption that we'd willfully use a malfunctioning transporter beam on the dudes knowing that it will likely cause them to turn inside out and explode a la Galaxy Quest.

The real world situations in which we've obtained custody of purported terrorist suspects who really weren't terrorists involved either mass roundups of foreign nationals by their own government or local warlord militias, who then handed the dudes over to us (in Afghanistan during November and December 2001, i.e., four years ago), or when they were political dissident refugeees framed by their own nasty governments who hoped we'd turn the dudes over to the nasty governments.

I am a lawyer, I agree with all that Mr. Holsinger has written. Let me add that we could make no worse mistake than to involve our court system in GWoT. It would be a recipie for paralysis.

Second, I note in comment #3 above and in this New York Times Editorial a tendency to advocate the McCain Amendment by condemning torture. The problem with the McCain Amendment is that it covers so much more than just torture.

#11

I personally do not "want" anything other than to preserve the rights of innocent people who may be unjustly imprisoned.

This issue is not nearly as cut and dried as our lawyer friends amongst us would like us to believe, IMO, since the definition of "war" has been left too vague in this discussion.

Some acknowledge that it is a "new kind of war", and this requires "new methods of justice". I agree wholeheartedly and am simply pushing the point that this has not been addressed as of yet to my satisfaction.

For example, although the President certainly has a lot of leeway in directing US Armed forces, Congress has not declared a "war" against any nation or entity WRT terrorism as far as I know.

Perhaps this would be a good idea at this point, it would certainly help clarify some of these issues as well as potentially galvanizing the American public in support of it...something I fear the current Administration has given up on (but will be required to be victorious, IMO).

#12

"The real problem consists of your one-sided, anti-American, assumptions."

You are out of bounds in accusing me of seeking anything except a further consideration of the points I raised above. I honestly am not raising a specific case...I was going to type "London" but "Rome" came out, probably because it is in the news. But I don't know any of the details about this case to know whether it is an example of what I am trying to illustrate or not. So put it past you.

I see, for you, I was not clear enough in stating my desire to address a hypothetical issue of a non-guilty detainee. Whether there are actually any of these people is irrelevant to my question. Once again, what recourse does an innocent captive have? For these purposes I'm not asking about someone captured on the battlefield but under more circumspect conditions where guilt is alleged after some investigation...exactly as in the "criminal justice" model.

So I'll give you another chance to readjust your thinking and treat this as the pedantic issue that it is, rather than a political one you may have thought it was.

Furthermore, if you'd like us to benefit from your professional experience, it would be greatly appreciated if you could address your response (if you have one) to a hypothetical situation where you yourself might imagine an innocent person could be detained.

I hope I've been clearer this time.

In this regard, thank you to #11 in particular for providing useful info on this issue.

Andy,
The reality is that it is only recently that people have allowed themselves to be confused by what was part of war and what was not. It is an extraordinarily destructive confusion.

By the way, your statement that Congress has not "declared" war in the war on terror is categorically false. S.J. Res 23 was adopted by both Houses of Congress on September 14th, 2001.

I assume that Andy is discussing the case of the German man who alleges that he was held unjustly in a secret CIA prison.

The case as far as it's been reported in the LAT (complete with bias of course) is that the man has various known associates who are active in Al Qaeda and particularly Chechnya. He claims he had an "argument with his wife" and just drove to Bosnia (because it's such a great vacation spot I guess). He claims he was just hanging around seeing the sights when he was grabbed up by the CIA and tortured. The CIA is not talking on the record but Bosnia is a known Al Qaeda meeting center, particularly for Chechnya-related stuff but also European wide terror.

Was this guy grabbed up? Possibly. And then again possibly he just wants money. Is he some total innocent with no terror issues? The German security services have had this guy under long-term surveillance, suggesting he's of interest.

The domestic analogy is that Monster Williams denies he did any crime, so we should just release him, on his word. Far too often that seems to be the argument made against the current sets of detention.

Andy I AM sympathetic with the urge to treat terrorists as criminals, because it makes people feel good. However, that being said, I believe the record with the 1993 WTC bombing, Clinton's approach in the 1990's (echoing Nixon to Bush 1 handling terrorism), and the al-Arian dismissal (the evidence was strong, circumstantial, but strong) shows the fallacy of relying on that approach.

Jury trials and the criminal justice system often let guilty people walk: OJ, Robert Blake, Whacko Jacko, Byron de la Beckwith (murdered Civil Rights leader Medgar Evers) and so on lead the list. The result of this miscarriages of justice is a cynical public. The result of the failure to stop the terrorists involved in the 1993 WTC bombings particularly Khalid Sheik Mohammed led inevitably to 9/11.

The danger of the criminal justice approach and "rights" is that one missed plot results in at best a Beslan atrocity; at worst Wretchard's third conjecture. The riots in Australia (Middle Eastern men hassling women at the beach in Sydney, beating a Lifeguard unconscious, and stabbing a man defending Aussie girls against rape; SMS-texting Aussie riots/beatings of ME men, and ME men organizing counter-riots) show what happens with the criminal justice system. It is fore-most political and thus lets things happen out of control. More at Timblair.net

I agree conceptually though we need some framework for CIA people to sort through "secret" detainees in the interests of fundamental fairness (many will be low-level with info quickly sorted out).

Andy,

Would you mind telling us what your concerns about detention of an innocent terrorist suspect have to do with the topic of this thread, which is coercive interrogation of terrorists? Are you worried that we might torture someone who is innocent?

Your not very hypothetical hypothetical postulated that torture of another terrorist in a different country produced false information incriminating the guy picked up in Italy.

Now you say that your question has nothing to do with torture, coercive interrogation, or interrogation at all save that you postulate we're holding someone who is innocent of terrorism, and you wonder how he can prove his innocence. If this is correct, why are you asking that question in this thread?

As in, how many times are you going to change the subject? What is your real agenda?

If your concern is really about the mechanics of counterterrorism work, I suggest you go here:

http://counterterror.typepad.com/the_counterterrorism_blog/

or email its proprietor, acochran@gmail.com, asking him for references for you to read on how such investigations really work.

I will state only the following concerning the current incarnation of your question:

1) American policy in picking up terrorist suspects in foreign countries is to always work with that country's intelligence & security agencies if possible. That means they must both okay it and almost always perform the arrest themselves, because it is safer and more certain than us do it. The host's agencies also do the initial interrogation before turning the suspects over to us. It is rare for the host agencies not to be directly involved, and that is generally due to domestic political concerns, so they can honestly say, "We didn't turn anyone over to the Americans."

2) American policy in picking up foreign terrorist suspects outsome of their home countries is always to work with the intelligence and security agencies of the suspect's home country if possible. They generally know more about the suspect than we do.

So the evidence against any given suspect is scrutinized by at least his own government, as well as ours, before he is arrested, and often by a third government (the one of the country he is in if he is outside his home country). If a suspect's own government thinks there is enough evidence to nab him, what is your objection?

The only time we've acquired significant numbers of innocent suspects was in November and December 2001 when the northern alliance of Afghan warlords & militias turned over a lot of captured Afghan militia & foreigners over to us. All of those were released when we discovered they were innocent.

You seem to be rather worked up over an abstract hypothetical situation which is very rare in the real world. You assume that, if this ever happens, our intelligence people either won't be able to find out the dude is innocent, or won't care if he is or not.

At this point it is clear that the problem is really you.

The McCain bill doesn't address the issue of "innocence" one way or the other. All detainees are treated the same, which means that high level terrorists are given the same legal protections that a kid might receive if he met a guy in an alley who paid him some pocket change to lob a live grenade at a passing U.S. military convoy.

Andy, would you agree to a multi-tiered approach, suggested by NRO:

All of this would amount to a three-tiered system. The Army Field Manual would govern how we handle most captives. More coercive techniques would be available for terrorists who aren't conventional POWs and might have important intelligence. Finally, the president could go even further in rare circumstances. This is a system that would be suited to the complex environment presented by the war on terror, one in which intelligence is paramount and not to be forfeited lightly.

This would satisfy my conern that detainees captured by our military should not be given the rights of suspected criminals under civil laws.

Nobody has really discounted Tom Holinger's analysis and all I can say is that I spent a fair amount of time last week looking for legal analysis (left, right or center) on the particulars of the McCain bill and those few that I found, I linked to in Dan's previous thread. BTW isn't Eric Martin a lawyer?

One thing Robin Roberts mentioned that I don't believe has been discussed is the Supreme Court's decision that Gitmo detainees have certain inalienable-rights-to-be-named-later, which when combined with the McCain bill could create a flood of Habeas petitions, seeking everything from release to better accommodations. I would be curious why KSM couldn't file a writ of habeas corpus, once the McCain bill is passed, seeking to be tried or released.

Andy, I agree with Tom and Dan that the people we have are most likely not innocent people. If we do at some point imprison or torture some innocent person or persons, I would still consider that collateral damage as long as good faith efforts are made to avoid that situation.

Tom, To answer your last argument on the last thread, a fallacious argument is a fallacious argument and the slippery slope argument is fallacious. Just because the French ended up badly in the Algerian war doesn't mean we would in Iraq. Perhaps another analogy would be the British suppression of the Sepoy Mutiny in 1857. It was about as brutal as imaginable, but it restored peace in India, caused no particular blowback for England, and the British ruled India for nearly another century.

Fred,

Andy couldn't be convinced that we'll release innnocent persons in the future, even though I pointed out that we've already released hundreds or thousands of innocent persons captured as suspected terrorists.

This is identical to proclaiming that we nasty imperialists will never leave Iraq, even though we left the Philippines when its government asked us to go.

There is no possible way to convince Andy that his fears are groundless. I have major reservations about his sincerity.

You misunderstand my point about the French experience in Algeria, which was really how tempting the use of torture is. The French started out using it only to stop imminent terrorist attacks on civilians (as opposed to gathering information in general), and it was very effective in getting suspects to talk. French torturers had quite often been the victims of Nazi torture 10-15 years earlier, and knew how to apply it effectively.

But French torture was so effective in getting suspects to talk that the French started using more and more in situations not involving imminent terrorist attacks on civilians, until use of torture became general, even to the point of being done just to intimidate people.

And, once it entered general use, too many people who had used it in Algeria returned to France when their tours of duty expired, and talked about it. That had a major adverse effect on the French people's willingness to continue the war all by itself.

I mentioned this in an earlier post which seems to have slid right by you.