No just war, no peace

I just asked Stephen Carter a question--and I'm going to ask the Aspen Institute for the video of his answer. The question is one that I've been worrying at for a while: what do you do with captives of an entity that considers itself at war with you, but when there is no state to declare an end to the conflict?

His answer is too rich to do justice, which is why I want the video, but a couple of points:

1) Captives who fight out of uniform are not covered under Geneva. This presumably includes the prisoners at Guantanamo. Nonetheless, he says, we should treat them as if they were.

2) Geneva, and more broadly just war theory, is meant to deal with states. This is a gigantic problem with quasi-military terrorism.

Comments

#2 is much more important than one, because it deals much more with how you THINK of it all...

Posted by SwissArmyD | July 5, 2008 3:16 PM

Carter is dead wrong.

Megan, you are a libertarian and an econ blogger. You're all about incentives. If you incent something, you get more of it. If you remove the incentive, you get less of it.

If you treat combatants in and out of uniform the same way, you remove the incentive for the enemy to abide by the laws of land warfare. You give him every incentive to blur the distinction between combatant and noncombatant. You give him no reason whatsoever to do anything else.

(Historically, we've executed enemy combatants who did this (c.f. the Battle of the Bulge, when the Germans put English speaking Wehrmacht soldiers in US uniforms to sow discord in the rear. We shot them when captured).

If you remove all incentive for our enemies to adhere to the laws of war, they never will. They can avoid American firepower by hiding among civilians - and inevitably increase casualties among civilian noncombatants due to the confusion that Carter wishes to enable and reward.

Tell me, where is the ethics in that? We're doing a favor here for precisely whom?

Answer: Terrorists, and ONLY terrorists.

I hope you're actually misrepresenting Carter here, because if your characterization of him is accurate, I'm not very impressed with him.

As for how long to keep an illegal combatant prisoner, the answer is NOT complicated, and is EXACTLY the same whether there is a state to declare surrender or not: You keep them until the cessation of hostilities.

In the case of Al Qaeda, that could be a very long time, because Al Qaeda has no responsible chain of command with the authority to order its members to lay down their arms and cease hostilities.

This is our problem, exactly, how?

Let the word go forth to the entire world that if our enemies have a problem with the prospect of being held in prison until they rot, then they should not adhere to nonstate terrorist groups, and they should comport themselves in accordance with the laws of war.

Make it AL QAEDA'S problem, not ours.

This isn't difficult reasoning.

Posted by Jason Van Steenwyk | July 5, 2008 3:49 PM

Carter's two points are facts, not opinion. That's not to say that Jason doesn't make a valid argument, but the larger issue is that court rulings such as the recent SCOTUS habeus corpus case, and these points are in direct conflict, which makes for a gigantic problem as we move forward.

Posted by jwh | July 5, 2008 3:59 PM

Per the GC, unlawful combatents can be shot in the field, even if they surrender.

We should take all the gitmo boys back to afganistan and shoot them. we should show a stunning inability to take prisoners going forward, and if we encounter any journalists in the battlefield who are disseminating propoganda for the enemy we need to shoot them too.

Pretty soon the whiney liberals would be begging for tribunals again.

Posted by Smarty | July 5, 2008 4:05 PM

Per the GC, unlawful combatents can be shot in the field, even if they surrender.

We should take all the gitmo boys back to afganistan and shoot them. we should show a stunning inability to take prisoners going forward, and if we encounter any journalists in the battlefield who are disseminating propoganda for the enemy we need to shoot them too.

Pretty soon the whiney liberals would be begging for tribunals again.

Posted by Smarty | July 5, 2008 4:05 PM

You are confusing the Constitution with the Geneva Conventions, jwh. The Boudienne decision has no bearing on the GC, and the GC has no bearing on our Constitutional obligations to detainees.

The Geneva Conventions sure as Hell does not obligate other countries to provide for habeas writs for our own soldiers when they fall into enemy hands. And it does not obligate us. Only the Constitution does, according to SCOTUS.

Posted by Jason Van Steewyk | July 5, 2008 4:13 PM

I think Hamas is an interesting pickle. Here is a group that has been designated a terrorist organization by most western countries, but also a group that has been democratically elected to serve in the parliament of a quasi-state.

And where is the line? How many members of Hamas must be democratically elected for them to be considered part of the "state"?

What about the Taliban? They ruled a state, but then we overthrew them. Does the act of us overthrowing a government overrule its right to the Geneva conventions? Or, in reverse, when they were fighting the Soviets as rebels (with plenty of help from the US), were they merely enemy combatants, but did they gain Geneva status once they took over control of the country in the 90's?

If prisoners of the Iraqi Republican Guard fell under the Geneva conventions, did they still once we toppled Saddam's government? Could the same person fighting in the same war for the same reasons all of a sudden go from a prisoner of war to an enemy combatant because we toppled his commanders? ("Headquarters called, the government collapsed and the army has been disbanded, feel free to put electrodes on the prisoners' genitals now.")

What about the case of a Civil War? Taking the US as an example, were the southerners enemy combatant "rebels" as the North claimed? or uniformed soldiers of a separate country as the South claimed? Do both sides of a civil war get equal protection or only the non-rebel side?

The problem is who decides which category a group falls under, and how that category could change mid-conflict.

Posted by Nylund | July 5, 2008 4:20 PM

jhk,

You're also confusing facts with opinion.

That we SHOULD treat illegal combatants the same as legal combatants under the G.C., even though Carter averrs we are under no such obligation, is opinion, not fact.

That the GC is designed to deal with states and not stateless terrorists is an opinion, not a fact. I would argue that it's not much of a problem at all. At least for us. We should, however, make it as much of a problem for terrorists as possible.

Posted by Jason Van Steenwyk | July 5, 2008 4:28 PM

I too would have disagreed with Mr Carter's interpretation of the 3d Geneva Convention, Article 4, which seems to be the applicable rule. Here's pertinant parts:

Art 4, A: Prisoners of war...are persons belonging to one of the following catagories...

1. Members of the armed forces...as well as members of militias...
2. Members of other militias...operating in or outside their own territories...provided that such militias...fulfill the following conditions...
a. That of being commanded by persons responsible for his subordinants;
b. That of having a fixed distinctive sign...;
c. That of carrying arms openly;
d. That of conducting their operations in accordance with the rules and customs of war.

But then when I looked at the above it was obvious the Gitmo detainees would not meet these standard if we could prove they were AlQaida. But that they probably would meet them if they were Taliban. 'Cause the Taliban were what passed for the legitimate gov't of Afghanistan at the time.

Then I read this (Art 5):

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong in any of the catagories enumerated in Art 4, such persons shall enjoy the protection of the present convention until such time as their status shall be decided by a competent tribunal.

So it looks like there are lots of distinctions that might be made but only by a "competent tribunal". And the Present Occupant has not been able to establish anything like a 'competent tribunal' since these detainees came into our hands in 2001.

So the distinctions don't matter and we have to treat them as POWs...oops!!!...should have treated them as POWs.

So what Gen'l Taguba said is even more true:
"The Commander in Chief and those under him authorized a systematic regime of torture."

Posted by JohnMcC | July 5, 2008 4:41 PM

Regardless, I believe the G.C. do not allow for summary executions under any circumstance whatsoever. Even spies would have to go through some tribunal process.

So you can't just 'shoot 'em' once they're in your custody.

Posted by Jason Van Steenwyk | July 5, 2008 4:56 PM

Geneva is rules for Western states fighting each other, and evolved from the Western experience. No one else follows it.

It's funny that most people don't realize that Geneva is conditional. If you don't follow the rules, you aren't protected by them. It's simple and self-enforcing. Enemies that don't follow the rules aren't protected and can simply be executed. That actually happened in WW2 and Vietnam.

The trouble is that we no longer punish them, so they have no reason to follow the rules. I'm not in favor of summary execution, but we need to take a hard look at giving rights to prisoners who, by their conduct, deserve none.

Posted by John Lynch | July 5, 2008 5:00 PM

Geneva, and more broadly just war theory, is meant to deal with states. This is a gigantic problem with quasi-military terrorism.

But terrorism itself is not itself a gigantic problem. By any objective measure, the threat of terrorism to the United States is quite small.

Posted by Freddie | July 5, 2008 5:03 PM

Jason, Smart, John-

You're advocating a system that condones and accepts torture. Cut the legality out for a moment because I think Oxymoron when I think rules of war. It doesn't really matter, if we behave as are current crop of enemies do we give no alternative view to the people we are trying to influence. Counterinsurgency victory can only be accomplished one of two ways.

1.) You kill, burn, murder, rape, in short you bludgeon you opponent till he accepts defeat or is annihilated. There is no nice way, there is no legality, you destroy everything and leave ashes and bodies. While fast this will not work for the United States, it is morally reprehensible, sadistic, and destroys the very institutions celebrated not one day ago.

2.) Deliberately, and patiently build up a popular base of power for your government offering an alternative view for the undecided or apathetic so good they take it. This is what we are doing, and its working in Iraq and Afghanistan. Although with Afghanistan what amounts to cross border raids have caused serious problems in the last two months.

The way your advocating is not brutal enough for part 1, but brtual enough to disable part 2. So I don't care whether its legal, smart, moral, or pink. Overall it is detrimental to our method of WINNING the war on terror. I should know, I was in Iraq for Abu Ghraib, I was in Afghanistan when Legion company burned a bunch of bodies North of Kandahar in 2005 (thankfully for Legion company Hurricane Katrina hit two weeks later brushing it off CNN and BBC), and I'm back in Afghanistan now dealing with the current show. What your proposing won't get the job done.

Posted by ben | July 5, 2008 5:06 PM

This is an honest question, not an argument:

Does any mechanism or incentive prevent the U.S. military from capturing and detaining people who aren't terrorists? How do we know that we haven't accidentally filled Guantanamo with civilians?

Posted by az | July 5, 2008 5:09 PM

Freddie,

But terrorism itself is not itself a gigantic problem. By any objective measure, the threat of terrorism to the United States is quite small.

You've made this claim before, Freddie. You made it here. And the response is the same as before. You're misunderstanding the true nature of the threat.

Posted by Mixner | July 5, 2008 5:18 PM

Now back to the post. I agree with Mr. Carter's assesment. I also understand the desire to fully elaborate detainee treatment. I mean can we hold them indefinitely, believe it or not releasing many of them would probably get them killed. But still how do we deal with the admin side of prisoners in this situation? Doing the right thing on this issue is going to require work.

Note for above post: In case I have a couple of Vets or active/national guard guys around. I've just spent 15 months in Afghanistan, its the end of the show, so you know I have a lot of free time (since I'm obviously not supply or a commander, then I'd barely have time to breathe). Also torture is only effective for garnering information, and it doesn't seem to good. But I am not present at the interrogation so I can't be sure of what they did. So for sheer utility its best outcome is stopping an attack back in the US or on forces.

Posted by ben | July 5, 2008 5:20 PM

But terrorism itself is not itself a gigantic problem. By any objective measure, the threat of terrorism to the United States is quite small.

Explain THAT one to the families of the 9/11 dead, Freddie.

I'll be laughing at your toothless grin.

Posted by Jason Van Steenwyk | July 5, 2008 5:21 PM

Why is not torturing anyone such a horrible idea? Who cares if they torture us? American shouldn't sink to that. I don't care how many Americans get beheaded on the internet. Torturing people will not stop that. Torturing often leads to bad information and acts as a justification for more harm to be done against us. There is an issue of moral standing. It may not change the opinion of your enemies, they will hate you no matter what, but it may change the opinion of your allies.

Regardless if the US tortures AQ, AQ will hate us, so it will not do anything to prevent that, but it may prevent some other NATO country from assisting us. Our Coalition of the Willing is a complete joke and our utter lack of high ground on the torture issue probably plays some role in that, yet there are people that think our restraint from just bombing countries back to the stone age (when we are capable of doing so), shows restraint enough as to how righteous we are.

I do not think that any act (no matter how subhuman or atrocious) committed against America justifies us to lower our moral standards. I dream of the US being the moral compass of the world. We are far from that. I do not care if this puts us at a disadvantage. I think we have more than enough military might to make up for that.

Posted by Greg | July 5, 2008 5:31 PM

Why is not torturing anyone such a horrible idea?

Because of the ticking time bomb scenario.

Posted by Mixner | July 5, 2008 5:33 PM

Because of the ticking time bomb scenario.

Right, the scenario where you KNOW there's a bomb, you KNOW it's going to go off imminently, you've already captured a terrorist (but this fact hasn't resulted in a disruption of the overall plan), you KNOW that the terrorist knows where the bomb is, you KNOW that if you torture the terrorist, he'll reveal where the bomb is, and you KNOW that you'll be able to disarm the bomb in time to save lives, and you KNOW no other kind of interrogation is going to be effective....

This is a bogus, dorm-room-argument hypothetical, which is made even more irrelevant by the fact that the United States has not been the victim of a terrorist attack in almost 7 years. We've never had anything approaching this situation in the history of the United States. And that says nothing about the flat immorality of torture.

Posted by Freddie | July 5, 2008 5:47 PM

In the late 50s and 60,s the French went through similar debates on Algeria and Vietnam. Capt. Roger Trinquier, who wrote "la Guerre Moderne"

(http://www-cgsc.army.mil/carl/resources/csi/trinquier/trinquier.asp#16)

came up with some interesting arguments on how to think about terrorists as combatants:

"The terrorist should not be considered an ordinary criminal. Actually, he fights within the framework of his organization, without personal interest, for a cause he considers noble and for a respectable ideal, the same as the soldiers in the armies confronting him. On the command of his superiors, he kills without hatred individuals unknown to him, with the same indifference as the soldier on the battlefield. His victims are often women and children, almost always defenseless individuals taken by surprise. But during a period of history when the bombing of open cities is permitted, and when two Japanese cities were razed to hasten the end of the war in the Pacific, one cannot with good cause reproach him.

The terrorist has become a soldier, like the aviator or the infantryman.

But the aviator flying over a city knows that antiaircraft shells can kill or maim him. The infantryman wounded on the battlefield accepts physical suffering, often for long hours, when he falls between the lines and it is impossible to rescue him. It never occurs to him to complain and to ask, for example, that his enemy renounce the use of the rifle, the shell, or the bomb. If he can, he goes back to a hospital knowing this to be his lot. The soldier, therefore, admits the possibility of physical suffering as part of the job. The risks he runs on the battlefield and the suffering he endures are the price of the glory he receives.

The terrorist claims the same honors while rejecting the same obligations. His kind of organization permits him to escape from the police, his victims cannot defend themselves, and the army cannot use the power of its weapons against him because he hides himself permanently within the midst of a population going about its peaceful pursuits.

But he must be made to realize that, when he is captured, he cannot be treated as an ordinary criminal, nor like a prisoner taken on the battlefield. What the forces of order who have arrested him are seeking is not to punish a crime, for which he is otherwise not personally responsible, but, as in any war, the destruction of the enemy army or its surrender..."

While Trinquier is attempting to justify torture here (and you can see how successful the French were in both Algeria and Vietnam), I think there is a solid argument for classifying al-Qaeda as 'hostis humani generis' -- the same group as pirates, torturers and slave-traders (stateless "enemies of humanity").

Posted by Franz | July 5, 2008 5:48 PM

Freddie,

Right, the scenario where you KNOW there's a bomb, you KNOW it's going to go off imminently, you've already captured a terrorist (but this fact hasn't resulted in a disruption of the overall plan), you KNOW that the terrorist knows where the bomb is, you KNOW that if you torture the terrorist, he'll reveal where the bomb is, and you KNOW that you'll be able to disarm the bomb in time to save lives, and you KNOW no other kind of interrogation is going to be effective....

No, that's not the scenario. You may not "know" any of those things. But you may have strong evidence for all of them. Presumably, you don't believe that we must "know" that a wartime bombing raid will achieve its military objective in order for the raid to be justified. You don't believe that we must "know" the bombs will not cause needless deaths of civilians. The real world isn't about certainty. It's about estimates and probabilities. And that applies to the decision to use torture as well as the decision to drop bombs on enemy targets.

Posted by Mixner | July 5, 2008 6:05 PM

Freddie,

We've never had anything approaching this situation in the history of the United States.

How do you know? For all you know, the CIA might have averted dozens, even hundreds, of attacks on our country, large or small, using information obtained through torture.

Posted by Mixner | July 5, 2008 6:39 PM

But terrorism itself is not itself a gigantic problem. By any objective measure, the threat of terrorism to the United States is quite small

JVS -

Fred is absolutely right. For example compare the number of Americans killed in auto accidents versus number killed as a consequence of terrorism!

The tragedy is that we are following Bin Ladens playbook just he requested - invading and occupying a Moslem country and draining our resources while fulfilling his desire for $144 a barrel oil.

Posted by Anton | July 5, 2008 6:39 PM

Mixner: "For all you know, the CIA might have averted dozens, even hundreds, of attacks on our country, large or small, using information obtained through torture."

Not following the news? The torture techniques were lifted from communist methods designed to obtain false confessions. And all the evidence suggests that they worked: plenty of false confessions.

In any case this discussion is sad. I never thought I'd see the day when Americans, of all people, would be discussing how to deny rights to prisoners. The question is really quite simple. Are presumed terrorists criminals? If so, they enjoy habeas corpus, like any other person accused of a crime no matter how horrific. Are they warriors? If so, they have Geneva Convention rights and must be freed when the war is over. And there is no third category.

Posted by Hans B | July 5, 2008 7:13 PM

Yes, there is, dumbass. "illegal combatants."

Posted by Jason Van Steenwyk | July 5, 2008 7:23 PM

1) Captives who fight out of uniform are not covered under Geneva. This presumably includes the prisoners at Guantanamo. Nonetheless, he says, we should treat them as if they were.

Uh, why exactly should we "treat them as if they were"? Because doing so would advance America's image and garner us some much needed goodwill? Because doing so would be a hedge in the face of a resultant diplomatic crisis? How do either of these potential benefits stack up against the benefits provided by interrogation techniques unrestricted by the Geneva conventions? Should we treat all captives like this, or just the ones from countries that we are trying to cultivate strategic relationships with?

I'll withhold my judgment until the video is posted, but I strongly suspect these questions are addressed in his explanation. Instead, it's probably along the lines of "because it's the right thing to do".

How on earth did the Kissingers of the world get replaced with lightweights like this? Moreover, why don't we care?

Posted by Staash | July 5, 2008 7:42 PM

Hans B

Not following the news? The torture techniques were lifted from communist methods designed to obtain false confessions. And all the evidence suggests that they worked: plenty of false confessions.

The fact that torture can produce false confessions obviously does not mean it cannot also produce true intelligence information that can be, and perhaps has been, used to thwart attacks.

Posted by Mixner | July 5, 2008 8:49 PM

But terrorism itself is not itself a gigantic problem. By any objective measure, the threat of terrorism to the United States is quite small.

Explain THAT one to the families of the 9/11 dead, Freddie.

I'll be laughing at your toothless grin.

THAT'S your argument? argumento ad septembereleventhum? Are you frackin serious? 3000 out of 300 million one time in the last 10 years and it becomes a huge threat?

There were over 8000 people murdered by guns last year; some dude last week had his pancreas removed when he got shot in a mugging. Do you want to ban all guns and/or start locking up people indefinitely without trial as well? If not, why not? It's obviously a bigger threat than terrorism.

Per the question: "what do you do with captives of an entity that considers itself at war with you, but when there is no state to declare an end to the conflict?" the answer is much the same. These people are criminals, and should be treated as such (tried in a court, and if convicted, sent to prison for an appropriate period of time.)

Posted by Kolohe | July 5, 2008 8:52 PM

I thought the US was not a signatory to the third Geneva Convention and thus the argument isn't germane. (Backstory: There's more than one GC.)

Posted by Chap | July 5, 2008 8:54 PM

Kolohe,

You're another one who doesn't seem to understand that the primary harm from terrorism is not physical injury to the immediate victims of an attack, but the psychological and indirect harm to the nation as a whole. A few more 9/11-style attacks could do enormous damage to our economy and freedoms even if the number of direct physical casualties from the attacks was relatively low. So this "your chances of dying in a terrorist attack are very low" argument isn't terribly relevant, because it ignores the real threat.

Posted by Mixner | July 5, 2008 8:57 PM

Mixner:

The "real threat" you cite is our overreaction to terrorism rather than terrorism itself. Which is, you know, kind of the whole point of "terrorism". Otherwise we would call it murder, destruction of property, conspiracy, etc.

With that, we are in furious agreement. Still, I have a hard time reconciling "damage" to our freedoms as an appropriate response to terrorism. While terrorist attacks may be the psychological impetus behind freedom-limiting public policy proposals, it's the bad judgment of politicians and their constituents that translates them into bad laws.

Posted by Staash | July 5, 2008 9:28 PM

Jason Van Steenwyk & Smarty:
And what would you do about people we arrest who are innocent? Since we know that does happen. Also, the USA has, in the past, treated those we captured a lot better than those we fight against. It was one of the reasons we were thought of so highly. We did not act like the barbarians that Al-Qaeda were. I guess you would rather get in the gutter with them. is that what you want?

Posted by Joe Klein's conscience | July 5, 2008 9:32 PM

The "real threat" you cite is our overreaction to terrorism rather than terrorism itself.

Calling the psychological effects of terrorism on the targetted population an "overreaction" doesn't make them any less real or any less damaging. You can wag your finger at people and tell them they're being irrational, but that's probably not going to do much good.

With that, we are in furious agreement. Still, I have a hard time reconciling "damage" to our freedoms as an appropriate response to terrorism.

There is an obvious tension between liberty and security. The more people feel their security is threatened, the more likely they are to demand increased restrictions on liberty in order to protect security.

Posted by Mixner | July 5, 2008 9:41 PM

Mixner:

"There is an obvious tension between liberty and security. The more people feel their security is threatened, the more likely they are to demand increased restrictions on liberty in order to protect security."

Been reading Leviathan, have you?

Posted by Staash | July 5, 2008 10:08 PM

Yes, Mixner, you're right, the real threat from terrorism is what damage we do to our liberties in response to terrorism, so let's not restrict our liberties in response to an enormously exaggerated threat.

See? We all can get along!

Posted by Freddie | July 5, 2008 10:17 PM

Freddie,

let's not restrict our liberties in response to an enormously exaggerated threat.

The problem is that you claim that the threat from terrorism is "exaggerated" on the grounds that the number of direct physical casualties is relatively low. But the major threat is not direct and physical, it's indirect and psychological. Protecting against that threat may require significant restrictions on liberty, so that people feel secure enough to go about their lives more-or-less as they did before.

Posted by Mixner | July 5, 2008 10:36 PM

what would you do about people we arrest who are innocent?

In my case, I refused to accept custody of some detainees, who were subsequently released. Maybe they were bad guys, maybe not. But at my level, there was not enough evidence in my view to hold them.

In other cases, I had the regimental holding facility refuse to accept custody of a detainee, for similar reasons - the evidence or documentation did not meet the required standard.

Each detainee in Iraq eventually had his case reviewed by a joint Iraqi/U.S. panel, based on the evidence presented, which usually consisted of the sworn statement of at least two individuals (US soldiers in most cases, but also handwritten statements by Iraqi nationals, and a photograph of the detainee and any contraband, with the 10 digit grid coordinate written on a piece of cardboard. Frequently, if there was a substantial weapons stash, we'd pose the suspect who lived there right next to the cache.

My point is that there are a number of safeguards available within the command itself. This is where the process belongs. As Justice Scalia points out, the courts have neither the capacity nor the competence to weigh in on the battlefield.

Posted by Jason Van Steenwyk | July 5, 2008 10:53 PM

In response to Jason Van Steenwyk's statement:

"Yes, there is, dumbass. "illegal combatants.""

Here is "illegal" defined according to dictionary.com. Feel free to use any others as well. But please not if we use the term illegal it is in fact a synonym for criminal. So your categorization as "illegal" as the def below shows defeats your whole argument as to not treating them as criminals.

il·le·gal –adjective 1. forbidden by law or statute.
2. contrary to or forbidden by official rules, regulations, etc.: The referee ruled that it was an illegal forward pass....

—Synonyms 1. unlawful; illegitimate; illicit; unlicensed. Illegal, unlawful, illegitimate, illicit, criminal

And as far as the grand threat that is terrorism, what is OBL's next move? They can kill people here. Yep. No doubt about it. And those random killings are terrible and disgusting and OBL should be found, kept alive, put on trial and placed in general population at a nice federal pen where the guards can turn their backs every day after lunch and where he cannot become a martyr for his cause. And yes, the thought that I could be a victim is frightening, but at least I will die knowing that I have not reset my moral compass to the lowest common denominator and I do not base my life on the disgusting antics of others, especially those of these cowards (and others like Hitler and Stalin).

They CANNOT invade us, take us over or present anything resembling a true threat to our nation. I mean unless OBL is gathering his army, navy, air force and marines together on the border of Pakistan for a full frontal assault to overwhelm our forces. I'm guessing paratroopers and a marine borne frontal assualt like D-Day on one of the seaboards is what their plan is. But I'm not gonna hold my breath waiting for it.

Posted by Brian | July 5, 2008 11:03 PM

Mixner - "the major threat is not direct and physical, it's indirect and psychological. Protecting against that threat may require significant restrictions on liberty, so that people feel secure enough to go about their lives more-or-less as they did before."

I'm scared of people who own guns as are alot of other people in this country. In fact they kill more people every year than terrorists in this country do and most of those are innocent as well. Do you think the government could fix all of our fears? I'm also scared of not having a job as are alot of other people. Can the government make sure we all have one?

Posted by Brian | July 5, 2008 11:20 PM

Mixner: Protecting against that threat may require significant restrictions on liberty, so that people feel secure enough to go about their lives more-or-less as they did before. How does placing significant restrictions on liberty make people more secure? How is it possible for people to continue their lives as before when significant restrictions are placed on their liberty?

Posted by New | July 6, 2008 12:24 AM

What do you do with captives of an entity that considers itself at war with you, but when there is no state to declare an end to the conflict?

There's no such thing as an entity without people. So as far as the people who are at war with you go you have several options including ignoring them, persuading them to change their ways, killing them outright or some combination thereof. It's a lot easier to influence people and make friends when their only other option is dieing.

Take the American Indians for instance. There was a combination of wars and treaties that eventually ended the conflicts between the various tribes and the American military.

Posted by Nelson | July 6, 2008 1:01 AM

Mr Ben and Mr Van Steenwyck and any other veterans of the GWOT here, I salute you for your service. As a nation and as individuals, we are all in your debt forever. When I got out of the Philadelphia Naval Hospital in '67 I was deeply troubled by the things I had seen and the national turmoil that had developed in regards to the political backers and opponents of the War in which I served. I took my Honorable Discharge and GIBill and tried to disappear into a secret land with large oak trees and winding sidewalks and libraries and learned men who could teach me to understand how the nation I thought I had grown up in had turned out to be a completely different and hostile place. It was a long troublsome road. I expect in your own way you are following the same pathway. May you find peace and happiness at the end of this part of your mission. As I have.

Mr Franz, thank you for the quotation from the French officer who obviously had heard and seen how things really are and had grown wise thereby.

Mr Chap--we are indeed signatories of the GC. Everyone here who has gone through 'boot camp' has had the lectures. The U.S. 'signed' it on 18Dec49. The Congress 'ratified' that signing on 8Feb55. On that date there was a 'reservation' concerning our obligations under the act. We 'resevered' the right to put to death--to use capital punishment on--it's violators. We should think about that. The U.S. which now has apparently violated the 3d Geneva Convention--told the world in 1955 that we 'reserved the right' to put violators of the Convention before a firing squad, or in a hangman's noose or a gas chamber. That should cause some sleepless nights in the WestWing.

Mr Staash, (how I'd like to visit your home!!!) please check out the actual words of the 3d GenevaConvent'n...they are easily found online and I quoted them above as briefly as I could. In fact, fighters out-of-uniform who are in our custody require Geneva protections unless and until a 'competent tribunal' decides they are criminals and not POWs. Neither the U.S. Military nor the Supreme Court has been satisfied that the Present Administration has produced a 'competent tribunal'. To the contrary. When that happy day comes and we have determined By THE RULE OF LAW who at Gitmo are AlQaida terrorists and who are essentially innocent Arabs rounded up for the bounty on their heads--we should sentence them to appropriately severe and uncomfortable sentences or to death. I have no sympathy for them. They are the enemies of our civilization; if I were required to do so I'd happily serve on the firing squad that executes a properly tried AQ terrorist. As would most 'liberals' I know.

Mr Mixner, you seem to think that the persons who are popularly assumed to be the 'bad guys' are therefore the 'bad guys' without a doubt. You will learn to doubt as you mature, sir. If you keep your eyes and your mind open and your mouth shut, you will discover that there is much to be doubted when popular calls for war and vengence are loud and compelling. Until you do, be very slow to call for the torture and death of persons who 'everybody knows' or 'they say' is guilty. The costs of being wrong are very great.

Specifically about torture, you need only read Chris Hitchens account of his voluntary water boarding to know that a captive tells what he thinks will stop his torture. That is what we learn by torturing. At what was called the 'escape and evasion' school, special forces trainees in '65 were taught this--when tortured you may honorably tell your captors something they want to know. You should try to tell them a small part and to mix it with other nonsensical information. The location of the fuel dump would be told as resembling the boy scout campground you knew as a boy, for example.

John McCain was condemned by various pro-Bush trolls in 2000 for cooperating with the NoVietnamese. Actually, he was doing exactly what he was told he could honorably do.

That is as good as the 'intellegence' gets produced by torture.

Remember that during the Inquisition brave men renounced their religion. During the 'show trials' of the 30s life-long Bolsheviks admitted to being tools of the capitalists. During the Korean War brave Americans admitted to using germ warfare. We have the records. They were all lying. They were tortured. Torture produces lies.

Posted by JohnMcC | July 6, 2008 1:15 AM

By insisting that the government treat them as POWs, we're letting the US off pretty easily and giving them maximum leeway. If the captives aren't going to be considered prisoners of war, then they are simply ordinary criminals, subject to the due process of criminal law, which, frankly, is a lot more onerous a legal burden for the state to be carrying.

I would think as a libertarian you would understand that the actions of states are constrained by the rule of law. Everybody has some kind of legal status, and the rights, responsibilities, and privileges thereof. You can't just decide that someone falls into some sort of previously unknown third category that is neither fish nor fowl, neither POW nor criminal defendant, and then drop them into some legal black hole.

Posted by Brendan Moran | July 6, 2008 2:36 AM

Sure you can. Those people are unlawful combatants.

From the SCOTUS decision in Ex Parte Quirin:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. 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.

Posted by Jason Van Steenwyk | July 6, 2008 2:54 AM

Protecting against that threat may require significant restrictions on liberty, so that people feel secure enough to go about their lives more-or-less as they did before.

Echoing Brian, I have to ask: how can people go about their lives more or less as they did before if we've entered a quasi-totalitarian state "for their safety"?

I mean you keep saying that the threat is "psychological". What does that mean? The psychological threat from vampires might be pretty high, but that doesn't mean it's appropriate public policy to restrict freedoms in response. You seem to concede that the physical threat both to individual Americans and the national sovereignty of the US is quite low, yet you still think we should deliberately overreact, because... that'll soothe people's minds. Well, I'm sorry, but I'm just not that concerned about the psychological threats that people feel, when those threats aren't justified by actual real world threat.

And how does overreacting to a physical threat, exactly, help to assuage psychological panic? Wouldn't treating a threat as larger than it is actually exacerbate the problem?

Posted by Freddie | July 6, 2008 2:48 PM

Echoing Brian, I have to ask: how can people go about their lives more or less as they did before if we've entered a quasi-totalitarian state "for their safety"?

I said "significant restrictions on liberty." Not "quasi-totalitarian state."

I mean you keep saying that the threat is "psychological". What does that mean?

I don't know why you're finding it so hard to understand this. In the wake of 9/11, our national air transportation system was seriously damaged because people were afraid to fly. That's an example of the harm caused through the indirect, psychological effects of terrorism. There are all sorts of other ways in which terrorism could harm our economy and way of life through its psychological effects on the population.

And how does overreacting to a physical threat, exactly, help to assuage psychological panic? Wouldn't treating a threat as larger than it is actually exacerbate the problem?

Yet another strawman. I wouldn't support an "overreaction." I'm saying that in order to adequately protect ourselves from terrorism we may need to adopt significant restrictions on liberty. Terrorism itself represents a restriction on liberty, so it's not a clear dichotomy anyway.

Posted by Mixner | July 6, 2008 3:06 PM

I wonder how many folks realize that "treat them like GC POWs" essentially means hold them without *any* due process until the end of hostilities....

The real rub here is what if a detainee says "I'm not a POW."

Under the GC, you can convene a competent tribunal when you get around to it -- and that tribunal does not have to be a US federal court.

The next detainees will be kept on completely foreign lands--no federal court will ever have jurisdiction, so no habeus isses. The whole GTMO fiasco was based on a miscalculation* by the administration whether anyone would ever consider GTMO as US soil.

End result: higher costs & longer overseas tours for the same ends.

*IMHO, a very gross miscalculation, knowing who's on the Court.

Posted by Anon and on | July 6, 2008 3:44 PM

@John M: I made a mistake; I'm thinking of the protocols to the GCs, which the US hasn't ratified. And we've had several reservations to the ratified treaties, and the US constitution is supreme over any treaty. (It's been a long time since boot camp, I guess!) Thanks for the correction.

The governmental branches right now are struggling with a new problem. The nature of our enemy is such that not only does it not follow accepted laws of war but also they lie in a niche in the GCs that has a grey area. The original executive order was an attempt to resolve those issues McArdle mentions above; another legal solution might have been simply killing the illegal combatants, or releasing to countries that would torture and kill them (one reason many still are in GTMO and not repatriated). Complicating that effort is lawfare intended to further the desires of the illegal combatants picked up on the battlefield, and a political struggle over the war related to those detainees. Struggling is good; we'll get a better answer out of it.

---

Your point about McCain's forced confession brings up another point; we changed the fighting honor code to fit the new information, which was difficult and would have been much more useful done earlier but we didn't know we'd have enemies who'd do what they did.

Posted by Chap | July 7, 2008 12:18 AM

Jason Van Steenwyk,

My suggestion was that we now airdrop uniforms in addition to humanitarian daily rations before we go to war. Then they have no excuse to not wear uniforms. Hey, we gave them to you.

I suggest bright orange jumpsuits...that saves when they are captured, too.

Posted by Aaron | July 7, 2008 12:33 AM

Mixner,

Don't you get it? Liberal logic ---> removing shoes at the airport = quasi-totalitarian state.

As they say, the dark night of fascism is always descending in the United States...but landing in Europe.

Posted by Jason Van Steenwyk | July 7, 2008 1:34 AM

Mixner,

Don't you get it? Liberal logic ---> removing shoes at the airport = quasi-totalitarian state.

As they say, the dark night of fascism is always descending in the United States...but landing in Europe.

Posted by Jason Van Steenwyk | July 7, 2008 1:42 AM

"Conservative"* logic-

Our snipe countermeasures are working. You haven't seen any snipes lately have you? And if you have doubts on our processes and procedures, you're a moran. (Get a Brain!) Because we've said for years that government is the problem. Until the 21st century. Heck we use to be *against* TSA. That Daschele was silly with his Jacksonesque 'you must federalize to professionalize.' But not anymore. Terrorism is the existential threat of our time. No matter that it has affected less than one one- hundredth of one percent of the current US civilian population - heck of the total US population - over the last forty years. It's definitely on the same magnitude as the Nazis or the Communists. And so we must fight on all fronts. Don't worry if they say we are chipping away at your freedoms. Because we're not. Where in the constitution does it say "a well quenched thirst being necessary a free state, the right of the people to have bottled water shall not be infringed". It doesn't. In fact, it doesn't say you have the right to fly at all. So if some bureaucrats (whom again we used to say were the problem, but 9/11 changed everything) say you can't fly, you can't. We don't make mistakes anymore. And really, we should expand this the trains (remember 3/11) and buses (7/7). And drugs fund terrorism, so we need to lock up cocaine cartel kingpins. And poor black crack addicts. And hippie stoners. Or whomever uses marijuana. Because it's bad for you. Not like tobacco. Jesse Helms liked tobacco. But hated hippie stoners. And black crackheads. Really we know what's best for you. The democrats want to nanny state the snot out of you. But not us. We just need to make sure you are free of marijuana and pornography and dirty words and homosexuality. And evolution. Because we know better.

Like Sledge Hammer said, 'trust us, we know what we're doing'.

*scare quotes because goldwater would kick your ass. Or at least out of *his* party. I hope.

Posted by Kolohe | July 7, 2008 4:37 AM

It's pretty clear to me that AQ members don't qualify as POWs, but that Taliban members might. This doesn't matter for the torture question -- I'm completely opposed to torturing either group. But there's a tendency to put the matter in terms of two categories only... full POW status or no rules whatsoever. That's a mistake.

As I understand it, one thing about POW rights is that you can't interrogate them at all past the level of the "name, rank, and serial number" cliche. We want to be able to interrogate AQ. I just don't think torture is the way to do it. I'm especially opposed to it when the military (as opposed to intelligence services) is involved. Everyone on the planet should know that it is safe -- indeed desirable -- to surrender to the US military.

As far as POW theory, my take is that being a POW is a no-fault status. Your country drafts you and sends you to war. If the other side captures you, they can't assume anything negative about you just because you were in someone else's army. (Not even if it was Hitler's.) They can keep you off the battlefield until the war is over, but they can't treat you any worse than their own soldiers. A POW who commits a crime can be tried (the status is not a blanket immunity for any behavior), but there's no guilt associated with being a POW as such.

There's no such no-fault assumption about unlawful combatants. That gets them a lesser status. But not no status. They still get a few core rights, but not nearly as many as those who abide by the rules of war.

Posted by M.C. | July 7, 2008 9:15 AM

"Megan, you are a libertarian and an econ blogger. You're all about incentives. If you incent something, you get more of it. If you remove the incentive, you get less of it.

If you treat combatants in and out of uniform the same way, you remove the incentive for the enemy to abide by the laws of land warfare. You give him every incentive to blur the distinction between combatant and noncombatant. You give him no reason whatsoever to do anything else.

(Historically, we've executed enemy combatants who did this (c.f. the Battle of the Bulge, when the Germans put English speaking Wehrmacht soldiers in US uniforms to sow discord in the rear. We shot them when captured).

If you remove all incentive for our enemies to adhere to the laws of war, they never will. They can avoid American firepower by hiding among civilians - and inevitably increase casualties among civilian noncombatants due to the confusion that Carter wishes to enable and reward."

Personally I'm of the opinion that having the distinction between the two groups is what gives the enemy the incentive to engage in those tactics.

The purpose of terrorist activities is not to defeat an enemy by military means. There is no way that enemy forces in Iraq (or Afghanistan, or anywhere else they might be) could possibly kill or capture enough American forces to cause anything resembling an outright military defeat. American deaths are a nice side effect, to be sure. But they can never beat us in a stand-up fight, and they know it.

So what is the most reasonable strategy, if you're a terrorist fighting a vastly superior military force? Defeat them in the mind. Isolate the enemy from its allies, cause it as much pain and embarrassment and expense as possible, cause its people to doubt the mission, and drum up as much foreign support for your own cause as possible.

Getting some few terrorists captured and sent to Guantanamo achieves all of those goals. If the captured enemy soldiers were treated exactly the same as regular-army captives, we would be much less isolated from our allies, and not nearly as embarrassed. Domestic opposition to the war would have lost a celebrity cause. Their recruiters would have one less talking point. We would still be expending lives and resources, but otherwise the rest of their goals would not be achieved to the extent that they are now. They would have less incentive to keep using terrorist tactics. The only thing those tactics would achieve is inflicting casualties - which is a fool's errand, since they will never cause enough attrition to defeat us.

Posted by Tel | July 7, 2008 11:26 AM

This has been a fascinating discussion. One question I have after reading it is: why bother with capture at all? If interrogation is fruitless without torture, and torture produces false confessions, as well political hay for the Loyal Opposition, then why aren't we just shooting these mooks on the battlefield? Are we really getting better intelligence than we would have otherwise? And is that intelligence enough to justify the increased hassle? Wouldn't it be more of a deterrent to potential AQ members if they knew that their deaths at the hands of US military was certain?

It seems to me (a woman with no military experience or expertise) that war is brutal and a large component of winning is convincing the other side that they can't win. Killing lots of your enemies seems to be the quickest and most potent way to do that. But that's just me. I'm curious to know what others have to say about it.

Posted by Christina | July 7, 2008 1:34 PM

Who said that interrogation was fruitless without torture? That's not my understanding.

Posted by M.C. | July 7, 2008 1:53 PM

One thing most people overlook is that the Geneva Conventions only apply when both states are signatories. Even when the Taliban were the de facto government of Afghanistan they were not a signatory to any of the Geneva Conventions.

Posted by Jay | July 7, 2008 3:29 PM

Wrong.

Afghanistan was, indeed, a signatory. They signed the Third Convention in 1949 and ratified it in 1956.

The Taliban just ignored the conventions.

Posted by Jason Van Steenwyk | July 7, 2008 5:23 PM

"If you treat combatants in and out of uniform the same way, you remove the incentive for the enemy to abide by the laws of land warfare. You give him every incentive to blur the distinction between combatant and noncombatant. You give him no reason whatsoever to do anything else."

I think I need further explanation on this one. What incentive does another country's military have to stand up to our's? We are going to destroy them. We know it and they know it. Then to bring it down to a smaller level, groups like al qaeda (a bunhc of guys with ak47s and maybe some rockets and improvised explosives have NO incentive to fight against us in the open battlefield. I guess I don't understand the idea of incentivizing them because in all reality there are none. Or maybe I misunderstand your point. But if you put yourself in their shoes (and I'm not saying I don't think it's cowardly but with some degree of self-preservation ), what is the point of coming out into the open against the most powerful military this world has ever known. That would be a short-lived battle and any "cause" they are fighting for is gone, despite any (mis)perceived righteousness on their behalf. So I guess my question is, what is their incentive in taking the most powerful military in the world head on? I can't see any way to incentivize them. But perhaps I am missing something.

Posted by Brian | July 7, 2008 8:04 PM

"If you treat combatants in and out of uniform the same way, you remove the incentive for the enemy to abide by the laws of land warfare. You give him every incentive to blur the distinction between combatant and noncombatant. You give him no reason whatsoever to do anything else."

I think I need further explanation on this one. What incentive does another country's military have to stand up to our's? We are going to destroy them. We know it and they know it. Then to bring it down to a smaller level, groups like al qaeda (a bunhc of guys with ak47s and maybe some rockets and improvised explosives have NO incentive to fight against us in the open battlefield. I guess I don't understand the idea of incentivizing them because in all reality there are none. Or maybe I misunderstand your point. But if you put yourself in their shoes (and I'm not saying I don't think it's cowardly but with some degree of self-preservation ), what is the point of coming out into the open against the most powerful military this world has ever known. That would be a short-lived battle and any "cause" they are fighting for is gone, despite any (mis)perceived righteousness on their behalf. So I guess my question is, what is their incentive in taking the most powerful military in the world head on? I can't see any way to incentivize them. But perhaps I am missing something.

Posted by Brian | July 7, 2008 8:04 PM

One comment on the utility of torture.

A common argument against using coercive methods of interrogation, whether amounting to "torture" or not, is that they produce unreliable confessions. That would be an important consideration if you were trying to extract confessions for the purpose of obtaining a criminal conviction.

However, the possibility of false confessions is not really relevant for intelligence purposes. Indeed, you have to assume that high value detainess, in particular, will try to feed their interrogators with false information. The point of intelligence is to discover secret plots, agents, weapons, plans, and so on. Whatever information is obtained through coercive interrogation can be verified and checked. If a detainee says that explosives are stored someplace, the good guys can check on that and either they are or are not. If a detainee says that 'X' is secretly working for Al Qaeda and is planning an attack on such-and-such a date, they can follow 'X' around and see if there's any truth to the claim.

In short, if you want to argue against the use of coercive interrogation for intelligence and counter-espionage purposes, you will have to come up with some other argument.

Posted by DBL | July 8, 2008 11:24 AM

I'm no professional interrogator, but it seems to me that there might be some non-torture methods that would also achieve confessions; that a detainee who trusts and befriends the interrogator is less likely to give false information; and that torturing someone is not likely to make them trust or befriend you. Of course we would have to check the intelligence no matter how we obtain it. But if we can get that intelligence without having to torture anybody - and if obtaining the information in that manner is potentially more accurate, causing fewer wild-goose-chases - why should we be bothering with torture?

Posted by Tel | July 8, 2008 1:56 PM