"If you can't tell Sullivan and Zarqawi apart, then you know the terrorists have won."

I must confess, the update and the "correction" were posted simultaneously. As a way of making precisely that point.

How long do you suppose it would take Andrew Sullivan to formally switch sides if Zarqawi announced that he was in favor of same sex marriage?

Article 3 of the Geneva Conventions is prefaced that it applies:

In the case of armed conflict not of an international character . . .

There's nothing uninternational about U.S. activitities in Iraq and Afghanistan. Article 3 doesn't apply.

Andrew appears to have discovered the Zinn/Chomskey/Cole Kool-aid and finished the pitcher all by himself.

PD Shaw's arguments are absurd. I certainly don't think we would credit them coming from the insurgents. so we should not put them forward ourselves.

One of the intended casualties of this war has been American respect for supranational limitations without and legal restrictions within the United States. This part of the struggle has been largely successful. Too bad that as Iraq becomes more chaotic by the day, the idea we are spreading freedom and democracy is dead. Only the idea that we will stick around long enough to kill way more of "tem" than they of "us" is persists.

Evan Bayh is bailing on the war, but you dtill do have Lieberman.

"'If you can't tell Sullivan and Zarqawi apart, then you know the terrorists have won.'

I must confess, the update and the "correction" were posted simultaneously. As a way of making precisely that point."

I see your point, but I also see Sullivan's very clearly. He is NOT Zinn, Chomsky, or Cole, and he did not make a statement like that lightly or blithely. If the terrorists have won anything, it is because incompetents in the Administration have handed them victories on a silver platter.

Every one of those photos may take the lives of hundreds of American servicepeople to undo. The war is hard enough without the inability of Washingtonians to face the issue of enforcing the laws of war. This isn't just shooting ourselves in the foot; this is sawing our own foot off.

I care somewhat about the domestic policies of the next Congress, but nothing about the domestic policies of the next President. Instead I want one that understands how to fight a war and uphold the Constitution with honor and integrity. I don't care if that's a Democrat or a Republican as long as the powermongering and legal wishy-washiness stops.

And in response to the post by wf: I see your point as well, but America couldn't be a superpower at all if we didn't hold ourselves to a higher standard than anyone else. If we thought we were just like everyone else we couldn't project power at all.

It is the belief in American exceptionalism, the conviction that we improve the world and act better than others who have tried similar efforts, that sustains American intervention abroad. If being somewhat hamstrung in the process is the price, so be it.

Didn't the British act rather similar? Didn't everyone laugh at them for trying to educate the brown and black people and institute civil services and human rights and such, while the French and Belgians and Germans and whatnot were just getting along with business? And whose former colonial empire is doing best now, hmm? Holding yourself to a higher standard may be difficult in the short run but it pays dividends in the long run.

A great deal of the silliness involved here comes from critics of the United States castigating the US for violating what are not international norms, nor international treaties, but what those critics wished the treaties said in order to support their attacks on the administration.

The Geneva Convention on Prisoners of War is among the more richly "enhanced" treaties with critics imagination about it supplementing the actual provisions a thousand fold.

Andrew, the (arguably) second highest court in the land recognized that "not of an international character" did not apply to U.S. military activities in foreign countries in the "Hamdan case," including the current SCOTUS chief justice. Simply saying the argument is "absured" without reason is . . . well absured.

I would simply say that if the L.A. Times had dispensed with the legalisms and treated this subject with the attention it deserves, it would have made for a less interesting, but more useful article.

Torture is torture. What else can it be? [Grin]. Anyway, if there are certain things that are violated, then let these stuff come out in the open and face whatever consequences are in store for the violator. Just my two cents.

One of our cannibal allies brought in a renditioned dude's mother to give him hell, and she got him to confess. This really happened - I believe it was in Syria.

If having your friendly local secret police stand by with red hot pliers while your mom tells you were really adopted isn't humiliating and degrading, I don't know what is.

Unlawful combatants, which is what terrorists are, have minimal rights under the Geneva Convention protocols we signed. Basically it prohibits significant torture, willful starvation, etc. I have said many times that terrorists have far more legal protections under American law than under applicable international law.

And American law applies at our discretion. We can change it at any time, and are in this instance.

The Geneva Conventions applicable to us were intended to regulate warfare between lawful combatants. This change in American law means nothing for international law.

Objections to it are the usual propaganda by America's enemies, including our domestic enemies.

What I hope(d) would happen with the military training manuals is that vague, subjective standards, such as "humuliating and degrading" treatment, would be replaced with objective standards.

I would prefer less discussion of the difficulties and possible nuances of torture and more simple reassertion of the taboo against it.

Torture is a slippery slope. Do not get interested in how far you can move along that slope without going into an uncontrolled slide.

To avoid confusion: simple reassertion of the "don't even go there" line is not going into hysterics, or obsessing endlessly over Abu Ghraib (till something better comes along), or seeing torture as part of a partisan campaign or a piece of a campaign to fire "Rummy" or whatever. I'm not asking electronic tears, lies and political smears.

I'm not asking for guilt, breast-beating and a higher standard" for America and its allies either. I think that is counterproductive.

I just want more steady assertion that what matters about torture is not when it shades into "humiliating or degrading treatment" or some other category of obviously undesirable but not taboo activity; rather what matters about torture is to set a fence around it, high and wide, and don't go anywhere near there.

I'll say again: if prisoners are so far outside the laws of civilised war that they can be treated badly, unchivalrously, then they should be sufficiently outside the laws of war that they can be shot out of hand.

I'll say again: if prisoners are so far outside the laws of civilised war that they can be treated badly, unchivalrously, then they should be sufficiently outside the laws of war that they can be shot out of hand.

They are, provided the records are destroyed.

People in organizations have the continual conflict between getting the job done versus following the particular procedures the boss wants. The less supervision, the more they'll tend to do whatever works. The more supervision, the closer it gets to just being easier for the boss to do everything himself.

But now we're talking about making it official. We have two demonstrated ways to get in trouble torturing prisoners. You can torture the prisoner to death and fail to get the autopsy report falsified. Or you can take photos that somehow get to the media and cause a public outroar. At this point that's where we really draw the line. And we're relaxing where we say we draw the line.

I'm not clear why we want the PR disaster that comes from saying we're relaxing that, when we could get all the obvious benefits by just being a bit more hypocritical.

Oh, and finally -- there's still no evidence that humiliation etc actually produces better results than more professional sorts of interrogation. But it definitely provides a way for interrogators to take out their frustrations. They get to show an unprofessional enemy just how little they respect him. The more frustrations, the bigger the benefit. If we were definitely winning, it wouldn't be an issue.

What is "international law"? Who enforces it?

What is "international law"? Who enforces it?

Gabriel, what international law is, varies. In some cases like the Geneva conventions it's a set of treaties that a lot of governments have signed. The theory is that if one country fails to observe its treaty obligations then they might suffer retaliation. We're better off following our agreement than we would be fighting a dirtier war. But in the case of iraq we probably mostly honored the conventions while we were fighting the iraqi army. There were gray areas like using napalm and depleted uranium and cluster bombs in cities, and kill zones where we shot anything that moved without warning civilians that they were in a kill zone. But we made a decent attempt consistent with winning the war as efficiently as possible.

But now we're fighting civilians and when some of them violate the rules there's no way to tell them from all the other civilians who aren't violating the rules. The civilians never signed the conventions, though the rules say we're supposed to follow those conventions anyway since a previous iraqi government signed them. The theory is that we're better off running a clean occupation than a dirty occupation. It generates less civilian opposition etc. We'd feel that way about it if we were winning.

There are a collection of more recent "international laws" that a lot of nations have signed in connection to the UN. For these treaties (and maybe earlier ones too, I haven't tracked it) the UN has set up a World Court to monitor how well the treaties are kept. They can arrest individuals accused of war crimes and have an international trial. They can in theory impose sanctions etc. Of course, they can't extract war criminals from countries that don't recognise their jurisdiction, and they can only get the degree of sanctions etc that members of the UN are willing to enforce.

The USA has refused to accept the World Court because we don't want a bunch of foreigners deciding that americans are war criminals and getting the chance to punish us for it.

So international law mostly applies to weak nations that can't ignore it. It doesn't apply to us because we're so strong that all the foreigners can do is complain.

International law might apply to us at some time in the future. If it does, that will mean we are no longer a superpower and we have lost a lot of strength.

And if it were that simple an issue, the solution would be nice and neat. But it's not, and it's naive to miss the whole picture.

You're ignoring the reason for engaging in "humiliating treatment" in the first place: the detainees often have valuable intel which saves lives. If you just capture terrorists and stick them in a cell without interrogating them with any seriousness, you are potentially passing up the chance to discover and disarm an IED, or seize a weapons cache, or capture an entire terror cell. The question is not "should we come out against torture"--we already have; the real question: "is avoiding 'humiliating treatment' worth losing more American lives? How about Iraqi/Afghani lives?"

I won't rehash the "ticking time-bomb" controversies, but at the very least Americans (and the military) want the ability to protect themselves by using the gray area techniques; and if the only objection is a slippery-slope argument, well, those arguments tend to seem a little thin after a terrorist act leaves grusome pictures of carnage behind.

In short, you cannot say that everything would be A-OK if we only came out with an absolute taboo.

Tom: Unlawful combatants, which is what terrorists are, have minimal rights under the Geneva Convention protocols we signed. Basically it prohibits significant torture, willful starvation, etc.

Are you sure you don't mean the U.N. Convention Against Torture? When the Senate ratified that convention in 1994, they specified what was meant by torture (only extreme acts) and then Congress passed a statute criminalizing torture.

J. Thomas: there's still no evidence that humiliation etc actually produces better results than more professional sorts of interrogation.

Agreed. But we don't know that the military training manual actually permits humiliating behavior. It might be written to say A, B, C . . . are acceptable interrogation techniques and D, E, F are not.

Only if Jack Bauer does it.

J. Thomas,

Terrorists can be shot out of hand under the Geneva Convention protocols applicable to us. No trial is required. American law requires a trial of some sort - in World War Two those were really expedient field military courts. AFAIK, American law has since given unlawful combantats still more procedural legal rights concerning execution.

International laws applicable to us prohibit significant torture of unlawful combatants. We insisted on considerable wiggle room there. I repeat, they don't prohibit immediate execution.

International law has not protected American forces at all since World War Two. Ask all our POW's who were tortured in the Korean and Vietnamese wars, and during Desert Storm.

Only fear of American retaliation has protected our POW's since 1945, and then only marginally.

Tom Holsinger, we have argued similar topics repeatedly and you have never been convinced by my superb logic or factual backup. I'm tired of doing that.

In a country we're occupying (with a few more provisions that are all met by iraq and afghanistan) we can shoot soldiers or terrorists before they can surrender. Once we accept an iraqi or afghan terrorist's surrender inside iraq or afghanistan then we are obligated to give him a trial and wait six months before killing him, by the Geneva conventions on occupation. Unless he's so important that our security would be damaged by leaving him alive for 6 months.

If a third party wants to look at the details I'm willing to supply them.

Don't take Tom's word that it's OK to put a gun to a prisoner's head and just shoot him. It isn't.

You're ignoring the reason for engaging in "humiliating treatment" in the first place: the detainees often have valuable intel which saves lives.

I disagree on both counts. Detainees usually don't have any valuable intel. And the search for valuable intel is not a primary reason to humiliate them.

If you just capture terrorists and stick them in a cell without interrogating them with any seriousness, you are potentially passing up the chance to discover and disarm an IED, or seize a weapons cache, or capture an entire terror cell.

We get something like 80% of the IEDs without interrogation. Weapons caches have hardly any significance, there are still too many weapons easy-to-get for a few caches to matter. And it's reaching the point that in large sunni areas terror cells are most of the population.

But let's explore this further. The traditional way to get quick results was you start out with 8 or so POWs in a line. You ask the first one a question in front of the others. He refuses to answer. You take him around a wall and the other prisoners hear a shot. You come back and ask the question of a second POW. He refuses. You take him behind a wall and they hear a shot. One of the first 8 will talk.

The variant used by armies that are less squeamish is, when the first guy doesn't talk you shoot him in the head in front of the others. When the second guy doesn't talk you shoot him in the head in front of the others. Etc. One of the first 8 will talk.

Here's another variant. You bring the first guy into a room alone. You give him a cigarette if he smokes, a cup of coffee, etc. You say "The war is over for you.". You ask him questions. If he doesn't talk you do the same with the second guy. Etc. One of the first 8 will talk.

All of these methods get results within an hour or less. Humiliation tends not to get results at all. Eventually they start coming up with lies for you, they'll try desperately to figure out what you want to hear. It takes a lot of work, an hour per prisoner at a minimum, and you don't know which prisoner is going to talk. What good is it?

The main value interrogators get from humiliating prisoners is they get to humiliate prisoners. It's satisfying. It's like my old thesis advisor told me once when he was giving me some bad news. "The university president got some bad news last week and he took it out on the dean of the med school. The med school dean passed it on to the dean of the grad school. The grad school dean passed it on to our department chairman. He passed it on to the program director. She passed it on to me. And I'm passing it on to you." "What should I do now?" "Do you have a cat at home? You could go kick the cat."

Prisoners are like talking cats. More satisfying to take your frustrations out on.

The Geneva Conventions don't apply to non-state actors. Ask the Canadians.

There are a whole bunch of questions in the torture debate, most of which get skipped over:
"Is torture immoral?"
"What is torture?"
"Does performing torture corrupt our people?"
"Does torture actually obtain useful information?"
"Is torture a useful threat?"
"Do vague laws handicap operations in the field?"
"Where should the responsibility for drawing the line be?"
"Can we win the war without using torture?"

My answers are here.

J.Thomas,

Identify the specific GC protocol we signed which prohibits execution of unlawful combatanta without trial. Quote from it verbatim.

Or don't.

"Command and control responsibilities in terrorist organizations are looser than they are in regular armies fighting symmetrical warfare. Terrorist insurgents generally do not have "fixed distinctive sign[s] recognizable at a distance," the better to blend in with the population at large and to be able to conduct and launch the surprise attacks that are so characteristic of terrorist warfare. Along the same lines, terrorists do not "[carry] arms openly" and terrorism does not constitute "conducting operations in accordance with the laws and customs of war." Additionally, Protocol I, Part III, Sec. II of the Geneva Conventions mandates that:

To be sure, this section of the Geneva Conventions recognizes that "there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself," but as the Website for the Geneva Conventions notes, "these protocols aren't as widely accepted as the four 1949 conventions," and even if they were, they still mandate that a combatant "[carry] his arms openly" if he is to be placed under the protection of the Conventions.

This is wholly in line with the traditional laws of war. In an earlier defense of John Yoo on TCS, I noted the following statement from General Order No. 82 of The Lieber Code and the Laws of War:

If the Administration relied on the traditional laws of war as expressed by the Lieber Code and codified by the Geneva Conventions it could have achieved its purpose of writing a legal justification for treating Taliban combatants -- and for that matter, irregular Iraqi insurgents -- differently from traditional POWs."

PD Shaw,
Actually non-state "actors" can bring themselves under the Geneva Conventions.

SPQR (#27), I agree. I used the "non-state" actor shorthand from the article, which is an oversimplification.

I'm not suggesting that it becomes standard operating procedure to put women's underwear on the head of every detainee we arrest. I'm saying--and I don't think this statement is controversial--that in the course of prosecuting the WoT there will be some prisoners who we know have valuable intel, who won't just offer it up for a cup of coffee. And acquiring or losing that intel may have life-or-death consequences which cannot be ignored.

If the professional interrogators, who know more about extracting information than you or I, make the determination that a High Value Target will crack using humiliation techniques, why should they be prevented from doing their job by David Blue's absolute declaration of taboo?

As for the three methods you mentioned, note that the first two don't work as well on jihadis in a death cult who believe that the 8 guys in the line go straight to Heaven to meet 72 virgins... so long as they maintain their silence. Finding glory in martyrdom is a pretty effective immunization to death threats by the "infidels". (Not to mention the fact that when dealing with a decentralized command structure of independantly operating terror cells, the first 7 guys you shoot probably had valuable intel as well, and your bullet just put it permanently out of reach.) Same for the third variant: the Starbucks 'n' smokes "carrot" vs the bullet "stick" works for professional soldiers or conscripts, who feel they can safely retire themselves from a war effort and relax as a protected POW until a prisoner exchange is set up; and it may work fairly well for any civilians who simply accepted $100 to set an IED in order to feed their family. But it doesn't work for the HVT's who are fanatically driven to kill as many people as they can, who don't have a sponsor state to exchange prisoners with, and who don't consider the war to be "over" for them until one party is dead.

Too many blanket statements. Each prisoner is unique, and different methods work better on different cases. The interrogators would not have used such humiliation techniques if they thought they would be counterproductive. I'd rather let the interrogators make that determination, and leave the option open to them, than to have a pontificationg Senator remove a tool that could be of use. In which case, the blanket taboo declaration is still a bad idea.

That may describe the mindset of those who will abuse the system no matter what guidelines you set; and it would definitely describe those who employ methods 1 & 2 which you outlined. But I prefer not to assume the worst of our troops, and that they behave ethically because of their own code of honor--not because a camera-chasing politician scribbled down an extra regulation in the rulebooks. No amount of public moralizing on the government's part will stop misbehavior from going on if our jailkeepers actually behave like you are implying.

J.Thomas,

I don't require you as a non-lawyer to make a reasoned legal argument for your interpretation, but I have no obligation whatever to disprove a negative. You must show us which GC protocol you claim as the basis for your contention. And it is just one protocol - all the GC protocols were written as stand-alones because each must be separately ratified.

Pejman Yousefzadeh and I are both attorneys. Interpretation of legal documents is our day job, and we both say the GC protocols signed by the U.S. do not prohibit execution of unlawful combatants upon capture, and without trial.

Show us precisely which protocol you say prohibits this, or by your silence admit none of the ones applicable to the U.S. mean what you contend.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Would you care to cite chapter and verse where captured hostiles may be shot without any proceedings whatsoever? Although I'm not a lawyer, I will be glad to run your answer by relatives who are.

Tom, you have failed to be convinced by my excellent arguments repeatedly before. I see no value in discussing such things with you again, unless some third party asks. If there is someone who's actually interested then I'll quote the geneva conventions. Otherwise it's pointless.

A couple of interesting comments at my original post.

I'd say a reasonable interpretation of this article is that a competent tribunal must first find that the detainee is an unlawful combatant

And that's what this is really all about. The unlawful combatant in an international war has no substantive rights, but the agenda is to create a procedural right in the judicial system to first determine there are no substantive rights. Once the issue of detention is reviewable and appealable, the courts will begin giving detainees substantive rights for no other reason than to make their job easier. (If the detainee had a right to counsel, then it would be easier to make sense of what happened)

I don't believe the Bush administration is de-linking from Geneva because it wants to engage in degrading behavior. Alternative, non-Geneva, language appears to have been proposed. No, they don't want the field of battle to become crowded with lawyers.

As Tom has mentioned, there simply is not any clear prohibition on summary execution of unlawful combatants. This ambiguity wasn't accidental but rather a part of the original diplomatic proceedings of the conventions that people - for purely partisan purposes in feeding their Bush Derangement Syndrome - intentionally misrepresent the Geneva Conventions.

The criticisms of Guantanamo Bay, almost certainly the most humane combatant detention camps in the history of warfare, are of a like character.

Robin, I am not all that interested in Tom’s statement that captured unlawful combatants may be shot without any sort of trial, as even if he is a lawyer, I don’t recognize him as an of authority on international law. I asked for a citation to some legal code, and I would even settle for a well-known secondary source on international law. But somehow that hasn't appeared yet. I'm reluctant to believe that there exists a historical right to kill people outright that hasn't made it to the written word anywhere.

Similarly, statements like Gitmo being the nicest detention camp in world history would be a lot more persuasive if they were backed up with a reason other than "I like Bush and it’s Bush’ idea." For one thing, Gitmo, unlike many other detention camps, is apparently intended as a permanent location for lifetime detention (given the vague limits of a war on "terror" and our inability to think up any other plan for the detainees), which already seems more cruel than a traditional POW camp. But then, given the extremely restricted access to Gitmo of disinterested parties like the Red Cross, I can't decide what sort of grounding your statement could possibly have.

J.Thomas,

One of the ways to convince people to pay attention to your arguments is to admit error when you are wrong. Not admitting error when you should has the opposite effect.

A.J.'s citation is inapposite. It applies only when there is doubt about a given combatant's status as lawful or unlawful. In this war there is no doubt.

A.J. left out the part about the duty of captive combatants to identify their chain of command.

Note also that A.J. continues to insist that I disprove a negative. The Geneva Conventions applicable to us are prohibitory only.

It always comes down to this point in these discussions. The lefties and their kind insist that anything not specifically allowed by the GC is forbidden, i.e., they deny that there is such a thing as national sovereignity, and America's in particular. They claim this of their "international law" fantasies in general.

This one is over. The GC permits the immediate execution of unlawful combatants upon capture, at the captor's discretion. American law prohibits that - we require trials before they may be executed.

And American law may be changed. In this instance - "humiliating and degrading treatment" - it has been changed.

The lefties don't like that one bit.

So they lie.

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.

The GC certainly looks to me as if it requires tribunals in case there is any doubt. How could a captured combatant identify his chain of command ormake any other claim that there has been a mistake if he has already been executed?

followup comment

In what civics class, Mr Holsinger, did you learn that American laws can be changed by a decree of the SecDef?

If the professional interrogators, who know more about extracting information than you or I, make the determination that a High Value Target will crack using humiliation techniques, why should they be prevented from doing their job by David Blue's absolute declaration of taboo?

We have good professional interrogators, but not nearly enough. And we have a lot of second-rate ones who're primarily soldiers. Which ones are you going to believe?

But let's take your argument a bit further. Say we agree that it's potentially necessary to crack these human beings quickly. And say we agree that mere humiliation techniques won't do it -- particularly when they already know to expect them. Doesn't your argument work just as well for sheer torture? Get out the poultry shears and start taking off the finger joints one at a time, and cauterize each next wound to minimise the blood loss. When you've cut and burned off all their fingers and toes and testicles and they've spilled their guts and are no longer useful to anybody, just kill them and discard the bodies.

If we need the info they might have, why prevent our interrogators from doing their job by a useless taboo?

When you think about it, here we are trying to get information using silly humiliation methods, while our iraqi allies are using electric drills. No comparison. There are places in a human skull you can drill to get maximum pain without any risk of killing the victim. Particularly where the maxillary nerve runs. One little hole below the cheekbone and it's like 5 raging toothaches at once. And if they tell you enough you can dribble novocaine down the hole.

But wait, this is assuming we can actually capture high value people. If you knew you were going to face something truly unacceptable, wouldn't you die rather than surrender? Al Sadr surely felt that way. We accused him of murder and tried to catch him. He had no concept of being captured alive, he thought we were going to put him in Abu Ghraib.

If I was a fanatic afraid of being captured, I'd surely wear a suicide belt even when I went to bed. What excuse is there not to?

As for the three methods you mentioned, note that the first two don't work as well on jihadis in a death cult who believe that the 8 guys in the line go straight to Heaven to meet 72 virgins... so long as they maintain their silence. Finding glory in martyrdom is a pretty effective immunization to death threats by the "infidels".

So, you think they're ready to happily die but they'll break down if they're force-fed pork or insulted by a woman? They don't think the way we do, but why would you imagine this would work?

Look, there's a lot of experience with such things. During the witch-hunts the interrogators got many thousands of confessions. They got lots of women to confess to having sex with somebody who had hands and cloven hooves and horns and a barbed tail, whose semen was icy cold. They confessed to flying through the air. They confessed to performing magic spells that worked.
And they implicated other people. How much of this intel do you think was correct?

The soviet interrogators were very good at getting confessions. Alexander Dolgun said that every single victim either confessed or committed suicide. (This was widely believed in the Gulag, but how would they know? Maybe there were some who neither confessed nor suicided, who for some reason were never heard from again.) They got lots of confessions from people who didn't do anything like what they confessed to. They were very productive that way. Did they get good intelligence? Well, they got lots of names of new people to bring in and interrogate. And those people confessed.

Similarly, if there is any evidence whatsoever that our new interrogation methods work, it's classified. But actual evidence requires that the victim provide info that we didn't already know, that is proven true by some method other than more confessions. This sort of evidence is not actually that common, although it's possible someone is actually doing careful comparisons and the results are of course classified. But then, when has this administration paid attention to evidence? The political demand is there regardless whether it works. There are public reports that the victims at Gitmo started giving much better evidence when the humiliation was reduced, but that isn't definitive.

You are assuming the conclusion you want. There's no reason to think that humiliation (or torture) work better than the methods we've honed for a long time, except for your common sense. And common sense is notoriously unreliable for things outside the common experience.

Is there anyone here who's interested in what the geneva conventions say about killing prisoners, who hasn't already looked at it and made up his mind?

If so, I'll quote it.

I'm not interested in arguing it with Tom Holsinger for precisely the reason he mentions. Not admitting error when you should has the opposite effect.

Some of you are missing Tom's point (#21, etc.), its not that killing an unlawful combatant is legal; its that there is no bar from doing so under the Geneva conventions. I'm almost certain that such a killing would violate the rules of engagement, executive orders and perhaps laws passed by Congress.

Why would the Court go to the trouble of stating that unlawful combatants are subject to trial and punishment by a tribunal if they are subject to capital punishment without a tribunal? Can you give any credible explanation of why SCOTUS mentions these allegedly-unnecessary tribunals here. I don't think so.

Because FDR issued an exectuve order on July 2, 1942, creating a military tribunal to try violations of the law of war, and Congress had passed laws to similar effect. The defendants were arguing that the tribunals were unlawful. The defendants (including one potential U.S. citizen) were arrested in the U.S. and wanted trial in the courts. The only question was whether the military tribunals were lawful.

Two other points: The current form of the Geneva conventions were not in effect at the time of Quirin. Second, I think Tom's hypothetical plays out differently on U.S. soil where it is murder to kill any person.

PD Shaw, are you claiming that the Geneva conventions put no ban on summary execution of illegal combatants?

Would you like to see what the Geneva conventions say about it?

Well, first off, we don't agree on this because as noted above, there are cases where it does work. And the whole point of using these techniques is to do something unexpected, to shake the prisoner from his pre-determined mindset, to collapse his self-image and beliefs so that he gives up what he does not wish to give up. You seem to think the only point is to embarrass the prisoner, which is not the point at all. H&D is designed to push specific psycological buttons which reduce the prisoner's will to resist.

You're basically arguing that we should avoid the slippery slope of using H&D techniques which you dismiss as useless because... they lead to a slippery slope. I'm deliberately avoiding the "ticking time-bomb vs. torture" scenario because, quite frankly, the answers tend to break in my favor, and that taints the narrow point I was making that we should not be making absolute taboos against H&D.

And by the way, if you think that publicly endorsing H&D techniques will be futile because "they already know to expect them", what do you think the effect of banning them will be? Word will get out that the worst Americans can do is to give you an off-brand of instant coffee during your interrogation; the terroists' training pamphlets will helpfully inform recruits that no matter what threats the interrogators make, the Americans are forbidden from carrying through. The potential for gathering intel will drop to nil, and that is not acceptable.

Ironically, that sets up the ideal situation for using H&D techniques, since it would shake-up prisoners who entered captivity thinking they were perfectly safe; the downside is that the public declarations open up the interrogators themselves to charges of malfeasance, and tarnishes the US itself as hypocritical. The taboo sets up a no-win political situation for the Americans, while public acknowledgment of exactly what techniques we use will lead to specific "hardening" training for terrorists; the best option for the US government to undertake is a string of "no comment" or purposeful obfuscation of policy, to allow us the necessary wiggle room to get the job done.

Actually the first might work, because (according to the more radical sects of Islam) the jihadis may believe they can't enter Heaven if they are "unclean". Taking away a man's hope of Paradise eternal is a more effective threat than jail, or torture, or death. You're right, they don't "think the way we do", so why shouldn't we use that to our advantage and exploit some superstitions and fears? (Although I doubt anyone will spill the beans because a woman insulted him, but if he's subjected to those insults over a period of time it may be enough to break his pride in himself and his organization.)

To use an old cliche, "there are worse things than death". Part of the allure of martyrdom is that it's the "easy" way out: a moment of pain, followed by eternal bliss and glory. Staying around in the real world to suffer, with no power over your own destiny, can (hopefully) make you rethink your plans for Paradise. Remember Room 101 in 1984? Smith didn't crack and give up on his deeply held beliefs until his worst phobia was played on. Why do you suggest we should not exploit radical Islamic phobias and beliefs?

Irrelevant, unless you can show they used modern H&D techniques to illicit that bad intel. Keep in mind that there were also some cases where the "confessions" were pre-meditated, intentional vindictiveness against their neighbors.

Ditto above, with the added note that there was probably a good bit of outright torture--not H&D--involved in obtaining those "confessions". Assuming our professional interrogators also know this, I'd say that's a pretty good safeguard to prevent them from wandering down the "slippery slope" you postulate.

Look, you're basically expressing suspicion that any sort of interrogation works, short of killing 7 other prisoners in a row. If that were the case, interrogations of any kind would have stopped a long time ago. Obviously I disagree with you, and so do the professionals whose entire job is dedicated to intel extraction.

Fair enough. Which is why I want those for whom interrogations are common experience--i.e. the professional interrogators, the psychologists, the PsyOps agents, etc.--to decide which tools to use, not politicians who pass laws in response to public opinion polls. The absolute taboo removes tools from these professionals because they're not politically popular, and that doesn't make "sense" to me.

Sure, J. Thomas, show me your authority.

Well, first off, we don't agree on this because as noted above, there are cases where it does work.

For any method you pick, there are cases where it works. Short of preventing them from communicating. To actually tell whether it works you need to look at info that wasn't prompted by the interrogator, and then check that it turns out to be true. And the standard for truth can't be that the guys he informs on confess. It's fairly easy to get innocent people to confess.

And the whole point of using these techniques is to do something unexpected,

It isn't unexpected any more, and hasn't been since, at the latest, late 2003.

And by the way, if you think that publicly endorsing H&D techniques will be futile because "they already know to expect them", what do you think the effect of banning them will be? [....] The potential for gathering intel will drop to nil, and that is not acceptable.

I claim (without solid evidence) that the useful intelligence we get from captives is essentially worthless already. The whole operation is one of those things that sort of looks good if you don't look too close. Our technical interrogators did a useful job when they were looking for nuclear stuff. They could talk to informants and decide whether the informants were just BSing them. But those days are gone. The insurgents have no valuable secrets.

You're basically arguing that we should avoid the slippery slope of using H&D techniques which you dismiss as useless because... they lead to a slippery slope.

No, I dismiss them as useless because I think they're useless.

Actually the first might work, because (according to the more radical sects of Islam) the jihadis may believe they can't enter Heaven if they are "unclean". Taking away a man's hope of Paradise eternal is a more effective threat than jail, or torture, or death.

If they do think that way, you're providing them with an excellent reason to do suicide attacks. Or die resisting arrest. Do whatever it takes to die attacking us, before we can dishonor them. But I've never talked to anyone who thinks that way, and they're mythical to me. Maybe real.

"Look, there's a lot of experience with such things. During the witch-hunts the interrogators got many thousands of confessions."

Irrelevant, unless you can show they used modern H&D techniques to illicit that bad intel.

They'd strip people naked and pluck aoo their hair, every last eyelash, and then go on to real torture. Are you arguing that a bit of humiliation will break people quickly to the point they'll tell the truth, where the old witch-hunts did not? Because we believe these days the witch-hunts did not get true confessions. None of the victims met Satan face to face or flew on batwings or turned into toads. But they told the interrogators they did.

Look, you're basically expressing suspicion that any sort of interrogation works, short of killing 7 other prisoners in a row. If that were the case, interrogations of any kind would have stopped a long time ago.

No, I must have been unclear. I say that most forms of interrogation work sometimes, provided you don't render the victim incapable of communication. To decide that one method works better than another you need to keep careful statistics and do careful followup. It isn't enough to get the victim to tell you stuff. It has to check out, and it has to check out on physical evidence -- not just info collected from other victims by interrogators who know what they're looking for. You have no basis to think that humiliation works better than other methods, except for fantasy.

But then, you aren't claiming it does. You're saying to let the individual interrogator decide because he's the expert. And in response to that, I'm claiming that our experienced interrogators are way overworked. We get way more victims than they can process, and so we have a whole lot of poorly-trained interrogators to fill in.

Which is more important, the little scrsps of info collected by interrogators who don't even know that their methods aren't very good, or the continuing PR disaster?

Exactly so; I'm saying that at times it works and we shouldn't pre-emptively give up those situations. Sometimes coffee and a smoke works, and that's great; sometimes threatening prison time works too. And as long as H&D are not the "default" method applied across the entire prison populace, I don't see why we should forbid interrogators from escalating along the scale to use H&D as a tool if they deem necessary.

Yes, info needs to be checked out and independantly verified. (I'm not contesting that, and I don't see why you keep repeating it.) But that is true of any info obtained under interrogation, even if it's from the guy who gives it up in exchange for a cup of coffee.

Well, 100% disagreement on you there, but since we are both neither Iraqi intel analysts nor insurgents, it's useless for us to posit such sweeping statements. It's probably safe to say the insurgents don't know any nuke-related intel, but I'd say the location of a bomb-making factory, or the plans for the next convoy ambush, or the identity of the local terror financier (especially this last one), are plenty valuable secrets that need to be unearthed. Once again, whether or not they're worth employing H&D for should be left up to the interrogators and field commanders, not politicians who jump on headlines without a lick of the "common sense" you referenced earlier.

If that's the case, then your argument is moot because the solution is "train more interrogators", not "remove tools the new guys don't know how to use". A prohibition on using H&D affects all interrogators, including the veterans who know how to apply it effectively. It also introduces the potential no-win situation I outlined in my previous post.

If you're concerned about poor training, the solution is to revise the training and increase the learning time (which I whole-heartedly support, with or without a ban). If you're concerned that the new guys are conducting interrogations incorrectly, that's also remedied by an education solution or maybe increased oversight by veterans. But saying these problems should be solved by hamstringing interrogations en masse does not make sense.

Here is a very useful book reivew: My Battle of Algiers: A Memoir, by Ted Morgan.

The Battle of Algiers presents the best documented widespread use of torture in counter-insurgency, and this book provides an insider's view of it. I am familiar with the Algerian Revolution. This review, and apparently this book, do not mention the revulsion such a widespread use of torture caused in metropolitan France. This revulsion was a major factor in the French decision to pull out of Algeria.

Beyond that, read the review for yourself.

http://www.ohchr.org/english/law/index.htm

PD Shaw, first, the Geneva Conventions apply in only three cases. They apply to wars between nations that have ratified the GC, which essentially every nation has. So they applied during our wars with afghanistan and iraq. Second, they apply to occupations. So they applied while we were occupying afghanistan and iraq. Possibly the "handover" of authority might be considered to end our occupation, which might possibly make the GC no longer apply. Third they apply to "armed conflict not of an international character" inside a nation that signed the GC. I'm figuring this last does not apply to us unless we have a revolt in the USA, and I will disregard it.

So for example, suppose that the government of brazil asks us to go into the deep jungles and kill off a bunch of aborigines that are giving them trouble. The Geneva Conventions would not apply. We are not at war with brazil, we are not occupying brazil, they merely invited us in to do some ethnic cleansing for them. As far as the GC are concerned it's between us and brazil.

The GC says nothing about our right to summarily execute terrorists if we find them in sweden or switzerland or on the high seas. If it's in a foreign country we aren't occupying and aren't at war with, it's something to negotiate with the other country. Possibly they might consider it a cause for war.

For present purposes it's only about summarily executing people in iraq or afghanistan, or removing them elsewhere and executing them there.

Now to what the GC says about illegal combatants in those cases. The GC does not mention any concept of such a thing as an illegal combatant. No such thing. No mention.

OK, say you capture an iraqi. Say he's been shooting at you. The first question is whether he's a POW or not. The GC lists criteria for whether he's really a soldier, and if he meets those criteria he has a right to shoot at you, and you have a right to shoot at him, but not after he surrenders.

Say he doesn't qualify as a soldier. Then he's a civilian. See Article 4.

http://www.ohchr.org/english/law/civilianpersons.htm

But he's a civilian who shot at you. What about that? He's committed a crime. Articles 64 through 78 explain what to do with criminals. Under Article 68 he's liable for internment or imprisonment. If he has done espionage, serious sabotage, or killed somebody, he can be sentenced to death after a trial, provided he's 18 years old or older.

Article 75 says you have to let him appeal his death sentence, or ask for pardon etc. He must be allowed 6 months to do all this. Very different from summary execution, if he's an iraqi or afghan.

However, there are loopholes. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences. From Article 75.

This says that if your occupation is in too much danger, you can kill him sooner. Invoking this clause would not be a great PR move with the civilians. But we could have done it if, for example, we had captured Al Sadr and we just couldn't handle the riots and escape attempts etc.

And there is an even bigger loophole in Article 5. It says that if you think that somebody is a spy or an enemy, you don't have to let them communicate as you would for other civilians while it would hurt your nation's security to let them do that. And it also says that if you think they're a spy or enemy, you don't have to grant any other civilian-under-occupation rights that would prejudice the security of your nation. But you still have to treat them with humanity and you have to give them their rights as soon as you can.

This is a giant loophole. So for example, suppose that you are a Marine sniper in Fallujah, 11/04. You are in an exposed position and somehow a 12-year-old civilian has managed to surrender to you. Right away there's no doubt that he's an enemy combatant, the orders were that every civilian is. You can't hope to take him with you -- he'd make noise and reveal your position. You can't leave him behind -- he'd make noise and reveal your position. So you have to kill him. It isn't against the GC because you have to do it. But if you didn't have to, if say you found him in a basement in an area that was secured, and all you had to do was walk him over to a truck to get him interned, then it would be against the GC to kill him.

The GC says that in occupied territory you don't just kill civilians unless you have to. Even if they took up arms against you and turned into illegal combatant civilians and you beat them. In that case you owe them trials and six months before you kill them, unless the occupation is failing so badly that you can't wsit.

That's why there's so many problems with the interprtation of the Geneva Conventions. I remember one scenario being a raid (on foot) 20km inside enemy territory to hit one of their convoys. You ambush the convoy, defeat them, and end up with 5 or 6 wounded enemy soldiers. What do you do?

a) Leave them and let them die.
b) Provide first aid and leave them.
c) Provide first aid and take them with you.
d) Execute them.

Which one would you pick? Most people will say that only "b" or "c" would be acceptable, but most people have no idea what they're talking about.

"a" is the worst since most of them will probably die, and the one who survives will be able to pass on intel about you to his superiors, so you may get ambushed on the way back.

"b" means most of them survive, but they pass on info to anyone who comes looking for them, and then you get ambushed while trying to get back to friendly lines.

"c" means some of them probably survive but they slow you down enough that you'll run out of food and water well before you hit friendly lines. Plus, ofcourse, they increase the chance of you being spotted and killed on your way back.

"d" means they die and, when you get back to the base, your embedded reporter, and his 20,000 media friends make you out to be a bunch of baby killing savages. And your country gets called a rouge nation by the president of Iran.

There's no easy choices in war.

As I see it, the loophole is that the enemy combatant that purposely ignores the laws of war by conducting hostilities in civilian guise does not get p.o.w. protection under Geneva - III, but gets even greater protection as a civilian in Geneva - IV.

I would read the Fourth Convention in a different order. Article IV identifies the protected persons and Article V lays out the exceptions.

Specifically, Article V states:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

I certainly can make an argument based upon the history of the Third Geneva Convention that illegal combatants threaten the security of the State in a way that justifies stripping them of their rights.

But the kicker in Article V is:

In [such] case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

This clause doesn't presume a trial, but it does presume that even an unprotected person must be "treated with humanity."

I'm not sure I buy the Article 64 to 78 stuff. I don't think violations of the laws of war are "penal" in the sense the Geneva Convention is talking about them. The focus here appears to be on requiring the occupying power to take responsibility for law and order (the break it you buy it rule).

I've got two problems: First, the idea of an illegal combatant expressly being denied protection in Geneva III is being given civilian rights in Geneva IV. Makes me feel like I'm missing something. Second, I seem to recall reading that in the 1970s, there was a movement to close the loophole in Geneva by giving irregular (guerrilla) combatants protection. The U.S. opposed it. So my mind is suffering some incongruence there (although I could be mistaken in my recollection).

Otherwise, it seems to me that killing an illegal combatant would probably be inhumane in most instances and thus barred by the Fourth Convention.

J Thomas:
Say he doesn't qualify as a soldier. Then he's a civilian.

Not if he's holding a gun, or otherwise engaging in combat. Then he's an outlaw and entitled to no protections whatsoever.

PD Shaw, an illegal combatand doesn't get greater protection as a civilian than he would as a POW. As a civilian he can be tried for any attacks he's made against the occupying power. As a POW he could only be tried for war crimes. Soldiers have the right to attack enemy soldiers. Civilians do not have that right. Things a soldier might be expected to do, that shouldn't be held against him after he surrenders, are hanging offenses for civilians.

I'm not sure I buy the Article 64 to 78 stuff. I don't think violations of the laws of war are "penal" in the sense the Geneva Convention is talking about them.

Well, look at the beginning of Article 68.

Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. [....]

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

So we're talking about civilians who do espionage, serious acts of sabotage, and killing.

What else is it that illegal combatants do that isn't espionage, sabotage, and attempts to kill members of the occupation force? Illegal combatants are civilians who do this stuff, and this is what you do to them.
I seem to recall reading that in the 1970s, there was a movement to close the loophole in Geneva by giving irregular (guerrilla) combatants protection.

The idea was to treat them more like soldiers. There might have been some benefit to that, and there's a question whether the benefits outweighed the problems. So, if you're fighting a guerrilla army, they don't qualify as soldiers and if they get captured you have the right to put them on trial and eventually hang them. This makes it harder for them to surrender. Maybe it's better for the individual guerrillas and better for the regular army if the guerrillas can surrender instead of fight to the death when they're cornered. Or maybe not. The result was that there were additional protocols added to the Geneva conventions, and the USA refused to sign them.

http://www.ohchr.org/english/law/protocol1.htm

This one says for example that if somebody is clearly trying to surrender you have to let them. Contrary to Alex's practical example, if you capture somebody and you can't take them to a safe POW camp, you have to let them go and try to keep them safe. It's against the rules to do things that seriously damage the environment (like our use of Agent Orange in vietnam, or Saddam's use of burning oil in the Gulf in GW1). Our use of DU is disputed, but we never signed the treaty anyway. Etc, etc.

If we were to follow this protocol, Andrew's example would not be practical. Don't stage a raid so deep in enemy territory that you can expect to be ganked if they find out where you are. If you do stage such a raid and you are left with a choice of killing prisoners versus losing your unit, the proper result of your folly is to surrender. You made your mistake. You can pay for it by sitting in a nice safe POW camp until the wsar ends or you get exchanged. Or you could try to escape. Maybe they won't successfully ambush you on the way home, or you might take casualties before you can surrender when you do get ambushed. Or you might fight your way through. But if you kill prisoners and then they capture you, you can expect a trial and a hanging. And if your side loses the war you might get your hanging after the war is over, even if you thought you got clean away at the time.

But it's OK if you're an american, because nobody can enforce GC on us unless we lose.

Karl Gallagher, you are wrong if he is a citizen of an occupied territory. Then he can be shot resisting arrest, but once he is captured he is a criminal who deserves a fair trial. He can be jailed or detained for a time proportionate to his crimes. (If he held a gun but didn't shoot at anybody, that's not going to be much of a sentence. If he killed somebody he can die for it. If he blew up a vehicle but didn't manage to kill anybody that's a capital offense too. If he wrote YANKEE GO HOME on a wall he can be detained for a short time.

The idea of the outlaw citizen with no rights in occupied territory is not in the GC. It just isn't there. Read it yourself and see if you can find it.

I think torture falls into two categories.
Fishing and Extraction.

Fishing is the torture to see what if anything someone knows. It produces dubious results because there is no baseline IE you do not know what they know and people will admit to anything under enough duress.

The second is if you know someone knows something and have a real need to extract that information.

If a man placed a nuke in Manhattan but will not tell you the location, is it okay to torture him? I say yes if you know for sure he has that information.

Einstein’s theories told us that even natures laws break down under extreme circumstances. Why should man’s laws be any different?

> Einstein’s theories told us that even natures laws break down under extreme circumstances. Why should man’s laws be any different?

One objection would be the, say, Catholic objection -- that there are actually moral standards and absolutes, and, to pick a fairly clear example, raping children is in ALL cases wrong, no matter what exigency is postulated (no matter what nuclear code is claimed or believed to be obtainable thereby). This is something fundamental to at least Catholicism -- the belief in moral absolutes.

Of course, that is a religious objection. I suspect many object to torture because of religious or moral reasons, rather than because of pragmatics.

(I don't deny that there are pragmatic objections to torture, but I did not mean to address them here.)

James, this has all been hashed out repeatedly before, but OK, once more through the rinse cycle.

The exceptional cases are no reason to avoid a blanket absolute prohibition on torture.

Like, look at your example. Suppose that we make torture a capital crime. And you know somebody has a nuke in Manhattan and you believe you can torture him into telling you how to stop it in time. Wouldn't you sacrifice your life to save Manhattan? Of course you would. It's the right thing to do. Say it's a mandatory 20 year prison term. Wouldn't you sacrifice 20 years of your life to save Manhattan?

Of course, it's possible that a Manhattan jury wouldn't convict you. And if they do, it's possible you'll get a pardon. Likely, if you succeed. But you want to be sure you're doing the right thing. We don't want the reasoning to be "Hey, maybe it will work, maybe it will do some good. And if not, it's just a person/member-of-ethnic-group/etc that I don't care anything about anyway.". If you aren't sure enough to risk your own precious skin, don't do it.

We don't need to change the laws to provide for the extreme circumstances. We only need to change the laws if we want to make it routine, and we want the guys who're doing it not to be responsible for their actions.