Difference between revisions of "Talk:Lecture 14"

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Geneva Conventions

Lazowska, repeating my email:

I feel that Bryan Del Monte presented an irresponsibly one-sided view of the Geneva Convention issue.

The question of whether the Geneva Convention should apply was the subject of considerable debate within the administration, with Colin Powell and his counsel losing the argument. See the PBS chronology here.

(Scan particularly for "January-February 2002 Bush administration's internal battle over Geneva Conventions.")

To present this as a clear-cut situation is intellectually dishonest and irresponsible.

It's not unlike presenting one-sided intelligence to the Congress, concealing the fact that there was in fact considerable debate and disagreement within the intelligence community. (See here for example (Seattle Times article re Congressman Norm Dicks).

The whole PBS coverage is rooted here.

--Gmusick 22:52, 30 November 2005 (PST) I found his entire presentation rather disengenuous (but fun to complain about). The worst offense was bringing up the founding fathers (something people love to do when they are not sure their ideas have enough merit on their own) and saying that our humane treatment of "enemy combatants" in battle was founded during the Revolutionary War as opposed to the British.

First, the would-be US government was trying to establish itself as a legitimate nation. So it had to play by civilized rules to get international respect, especially from the European powers. Second, to the British, the entire Continental Army was a band of rebels and back then they didn't look too kindly on rebels. And, lastly, it didn't take me too long to find a point where "American" armed forces did their own massacre (Gnadenhütten massacre in Pennsylvania). Of course, it was only Indians...who weren't proper soldiers and therefore didn't have the "laws of war" to protect them.

Anyway, Al Qaida sucks because what they do is evil and wrong and they do need to be stopped. But the US Government (in it's current form) sucks because it knows what is right and doesn't do it anyway.

--liebling It seems the version of history I was taught in elementary school conflicts with what was presented last night (not that I take my elementary school history as fact, but still...) I was taught that our soldiers borrowed the techniques of the First Nations such as "surprise attacks." My vision was one of the British army marching down the street with their drummer boys and American soldiers sniping them. I agree with Matt and I don't think that a historical analogy from 225 years ago is useful.

--Andrew Hoskins Ed, I think you missed the point. Bryan presented policy the conclusions of the government and the rationale for those conclusions. He never claimed to be presenting both sides of the argument; simply an official opinion (not necessarily his own) and the rationale for that opinion. It's obvious that it is a thorny issue; otherwise, there wouldn't be a talk about it. He never claimed that there wasn't debate. If you wanted to hear both sides of the debate you shouldn't have only invited someone from the Pentagon to quote and present the official US position.

To say it was "ridiculously one-sided" is also a polarizing and one-sided way of saying that you disagree. Statements like that in Ed's email are the types of statements that put people like Bryan on their guard and make them sound defensive. Both sides of a debate have to be accomodating or both will be pushed to the extremes.

--Ted Zuvich If Bryan was an intellectual (university or independent think take researcher), I think that your comments about his one sided presentation would be valid. However, Bryan is a government employee and we KNEW he was a government employee. Therefore, I would expect nothing else from him other than the official government line. It was educational to see him walk through it, but I did not expect to see any hint that there could be any other way. In other words, its expected. The point of such presentations is to present a case in such a seemingly solid way that the audience can't help but be convinced. It works against them, however, because any reasonably intelligent audience will be extremely skeptical of any claims made in the presentation, because they KNOW that they're only going to hear the official line. Kind of a Catch-22.

I used to be something of a Revolutionary War history buff, and I've read of many documented cases where the American soldiers adopted what could be construed as "terrorist" tactics. For example, sniping one or two British soldiers from cover and then fading away into the woods. So don't go claiming that the American forces were lily-white in that war!

--Dennis Galvin 21:20, 1 December 2005 (PST) - I think Bryan Del Monte mentioned he was somewhere in the process of acquiring a PhD from "GW" (George Washington University), so I would expect a bit of a nod to his audience. If he had only very clearly stated "this is the official US Government interpretation...." At one point he did say something like GWB is the Commander in Chief and is driving the policy. That said, the words of article 2 of Geneva Conventions 3 and 4 (as quoted by Jeff Bigham in the Eye for an Eye section) seem oddly twined into this administration's policy.

Eye for an Eye

Chris Fleizach - I found it particularly disturbing in the "normative" debate section that there was a bullet point talking about what Al Qaeda does to our soldiers/civilians. I didn't realize America had started looking to Al Qaeda for it's moral and ethical lead. If America wants to be the global policeman then it must set a high standard of conduct, lest we have little to say to countries that practice abuse in the open. The fact that this point made it into the presentation presumably means that there has been a lot of serious discussion by the policy makers. As a nation "that does not commit torture," according to President Bush, this discussion should have been ended quickly. Instead, it seems it has curried at least some favor if the Department of Defense feels it's acceptable to present to this class as a potentiality.

Jeff Bigham - Looking at the below quote, it seems that what the enemy does affects whether or not the Geneva Convention officially applies to them. Certainly if another state decided to disregard the Geneva Convention then it would seem natural that the U.S. wouldn't be held to it in regard to the offending nation's prisoners. It seems that al Qaeda has chosen to break the rules. Not that we should allow the legality of abandoning our morality to force us to do so. Terrorists organizations don't seem to be included in the text (largely, it seem to me, because the writers didn't think of them), and, even if it is interpretted so they are, then they don't qualify after they violate it.

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

The rhetoric coming from the administration would certainly have you believe that they don't treat terrorist prisoners differently than proper war prisoners, so it's unclear why it's important whether or not the Geneva Convention applies. If it is determined not to apply, then it gives them something to say to those that don't buy the argument that they are war prisoners. Are the precise interrogation/torture methods that are and are not acceptable explicitely defined in the Geneva Convention or have they since been fleshed out? Why are we only now debating what torture means? Depending on your outlook, all or none of the methods mentioned as possibilities mentioned in today's lecture could qualify as inhumane so it seems like someone would have already had to decide this already. Is the DoD/CIA veering away from established practices or defining something that hasn't been defined?

liebling I think we need to differentiate public perception and legal frameworks. I personally hate the fact that we can detain people indefinitely without charges, but should we accept that solely within the premises of "enemy combattant" legal framework that was created, the resulting actions are justifiable?

Andrew Hoskins My big takeaway from yesterday was that the US government thinks that Al Qaida's actions allow us to do what we want in retaliation. Since we are a relatively enlightened nation, we are free to make value judgments as to what we allow ourselves to do. This is why we feel we are free to have discussions such as "what is torture?"

My alarm bells went off during the first presentation because it sounds like we are having our cake and eating it too - treating the War on Terrorism it as war for our ability to detain people indefinitely, but then not treating it as war w.r.t. the Geneva convention. But as Bryan suggested, it's no holds barred since they do anything we want. But that doesn't mean we go beheading captives, it simply means we are free to set precedent for what we feel is allowable under our values.

So, silly political rhetoric and logic games about definitions of war aside, I do think that we get to have much of the discussion we're having. Clearly there are members of the Gov't that would come to the wrong conclusions, but I hope they are in the minority. Hopefully we are reaching the right conclusions and avoiding more Abu Ghraibs.

Having freedom to do anything, and having freedom to do what's effective yet still right, are two different things. I think many people are misinterpreting the latter as the former. The hope is of course that our checks and balances and policies and democracy prevent the latter from becoming the former, and we have to be very wary of which paths we choose, as many people are mentioning in this discussion.

Blame the Media

--Gmusick 22:19, 30 November 2005 (PST) I really liked the presentation by Christina, but I did get tired of hearing the old refrain of "it's the Media's fault" that our policies are misunderstood. Perhaps if the policies weren't totally formed in secrecy and marked "classified" then we wouldn't have so many misunderstandings about what is going on. And before somebody says it, there are plenty of examples of "the Media" doing really bad things or totally misrepresenting the situation. But there are more examples of the government doing horrible things and covering it up. Also, in the interest of full disclosure, I am a former journalist for an itsy-bitsy weekly paper.

--Altin Dastmalchi Did anyone ever catch that episode of the Daily Show when Stewarts making fun of Cheney, who actually publicly asked Congress for CIA exemption from the torture bill. OK so i understand that the CIA has to do something to get some answers, but i believe other methods (psychological means)are morally appropriate.

Chris Fleizach - The "blame the media" approach was a poor way to ignore addressing the real issues. The two presentations both showed that thoughtful discussion and debate went into crafting these policies and that, according to policy, America acts basically how most people would expect it to. The problem is that policy has not matched reality. Abu Gharib goes against everything discussed in the presentation. The fact that most abuse didn't happen during interrogations doesn't excuse the fact that it happened. Moreover, if interrogaters were not aware that the prisoners they were supposed to be interrogating were dying, then they were either grossly incompetent or not physically present at the facility. I think the presenters believe the media should only report on the actual policy. Unfortunately, reality has diverged from stated policy in many instances. The question that really needs to be addressed is why were there deviations from policy? The government would have us believe it was the work of a few bad apples. Why does working as a detention personnel happen to bring out the sadism in people while removing the chain of command and supervision?

Daryl Sterling - Even if the media calmed down, videos of EPW torture will spread across the internet like wildfire. It seems that even though such videos are beyond disgusting, they are on every "cool video clip" site known to man and generating hits spread by word of mouth alone.

--Dennis Galvin 20:59, 1 December 2005 (PST) - I have trouble with blaming the media as well. The EPW situation I think resonates so well because we have a natural revulsion to the dehumanizing aspects of the prisoners treatment. The Pentagon and administration have the key to turning the media around. If we saw multiple generals drummed out of the service with court martials, dishonorable discharges, sentences to hard labor, etc., because of what they allowed those lower in the chain of command to do over a prolonged period of time (for the sake of argument, I allow the benefit of the doubt here they did not explicitly condone the abuses), then the public would far more easily resonate with the administration on this issue. However, when we see a pregnant PFC court martialled and sentenced, many of us have difficulty in believing the trouble doesn't lie a lot farther up. A former president had a desk sign "The Buck Stops Here." With this issue, at least, the sign appears to now read "The Buck Stops Way Down There."

Moving Past Blaming the Media

Jameel Alsalam Because I have spent some time working in a beaurocracy (the UC administration) I have some sympathy for what Christina was saying about the media putting a bad face on DOD. I am sure that any of us get defensive when the media turns its attention towards us. After all, media is trying to sell media, and that often means saying inflammatory things.

The question I wanted to ask her is this: It seems like a lot of what is fueling the fire of criticism of the detainee and interrogation policy is that there is a combination of 1) Secrecy (no observers, etc) and 2) Distrust (of the government, esp. the military, so we don't want to just trust that they are making good judgements). So my question is, is this a policy question worth addressing?

Perhaps DOD or the administration can come up with mechanisms to increase trust - i.e. some level of oversight by an organization like the red cross, or some mechanism for detainees to make pleas on some set of grounds in a civilian court context. Normal criminal justice is counter-balanced by the fact that citizens who are wronged by the criminal justice system can argue their case in front of a judge, and to some extent the American people. So we are worried because it seems like in this case there is no force to balance the decisions of the executive branch.

But so far it sounds like the executive policy is that because this mode is legal, they are going to do it. Obviously there are other motivations than legality, but I for one felt convinced that at least legality is on their side.--Jameel 09:31, 1 December 2005 (PST)

Redifining Combatants

Chris Fleizach - With the presidential directive that says America does not recognize Al Qaeda detainees as prisoners of war and that they don't apply to the Geneva convention because they haven't signed the document should cause anxiety for all U.S. citizens. It seems the only thing keeping the government from having the ability to detain and torture me is that I haven't been declared a terrorist, since I too have not signed the Geneva Convention. If I'm not tortured, I can still be held indefinetly without being charged. Jose Padilla "was" an American citizen until declared an enemy combatant. No one is saying he should be released, but as an American, should he receive the legal protections given to him in the Constitution? Apparently not, because he didn't sign the Geneva Convention. A similar situation happened with the sleeper cell supposedly busted in Buffalo, New York. The New York Times found that these citizens had attended Al Qaeda training schools, but didn't like the direction bin Laden was pushing at. One of them even notified the FBI afterwards to declare he had done so. The government, to great fanfare, announced a few weeks later that they had broken up a sleeper cell. At the time of the article, the men had been imprisoned without being charged for years.

--Gmusick 22:25, 30 November 2005 (PST) It should worry everyone because this isn't the first time the US government has done something like this. If you have ever been to the Smithsonian, you will find a rather fascinating and depressing topic about the Japanese interment camps during WWII. There were mass arrests of American citizens whose only crime was their skin was "yellow". We're not there yet and we probably won't go back there totally, but the first step is making "administrative" decisions to hold people who may pose a threat to the security of the United States of America.

Altin Dastmalchito add to the above mentioned, i agree that US policy seems to have hated some group since forever. From Nazi's (ok maybe they deserved it), to "Japs" to Russians and McCarthyism to today and Terrorism. Now i'm not saying that all these groups didn't have there fare share of problems, but the way the situations were exploited by provoking Americans into FEAR is not ethical.

--Ted Zuvich I really did not understand this, ethically. If you are a POW, then the Geneva convention applies (and it should for the US whether the other side is a signatory or not). If you are not a POW (and the Al Qaeda detainees are officially not POWs), then you are a criminal. If you are an illegal combatant, you are also a criminal. This means that criminal statutes apply, which means publicly stated charges, lawyers, and all that jazz. I think the current US administration is way out on an ethical limb here.

The end of nation states?

liebling One thing that Geneva's appicability rests on is the concept of the nation state or "higher authority." Yet we have many organizations that are beyond the reach of an individual nation state -- mentioned last night were orgs like Non-governmental Orgs (NGOs), multinational corporations (Microsoft, GE, oil companies, etc), as well as terror cells. Even treaty alliances like those mentioned last night that supported America after 9/11 -- OAS, NATO, EU, UN, etc, are multinational affairs with their own laws. While a lot of contemporary Republicans would like to see the UN die as it "threatens our sovreignty," it seems to me like in the future there will be a significant showdown among these supranational organizations. If a country is bound to OAS and NATO, but NATO acts one way and OAS acts another, what is a state to do? I predict a lot of situations will arise where interests among these organizations will conflict, causing states to rethink their positions, possibly entrenching in nationalism as did the United States in 2002.

Offtopic: Nuclear Fear

abc This is off topic for this week but relevant to previous discussions. <a href="http://www.wired.com/news/politics/0,1283,69726,00.html">This article</a> from Wired gives a pretty good example of nuclear fear in Alaska. Someone wants to install a small particle accelerator in their living room, and people are comparing potential dangers from an accident to "three mile island". Sorry for going off topic but this seemed just to spot on relative to our previous discussions on the subject of nuclear fear.

Mr. Del Monte's Lecture: One-sided or Focused on the Topic at Hand ...

With respect to Mr. Del Monte's lecture, I think some people are being a bit too critical of its focus. I was under the impression that he was supposed to lay out the administration's legal basis for its handling of detainees and I think he managed to do that rather successfully. I believed the point of his lecture was to outline that basis, which I thought he did quite well, so that we could then discuss the various policies that have flowed from it -- i.e. GTMO, interrogations, tribunals, etc.

Professor John Yoo, the individual at OLC who initially formulated many of the relevant legal arguments that were eventually put forth by Alberto Gonzales, happens to be my law school thesis advisor and I have had the opportunity to speak with him on the issue of the Geneva Conventions' application to enemy combatants. Mr. Del Monte did a great job of laying out that legal reasoning, the reasoning that the administration adopted and that has served as the foundation for much of its activities in Afghanistan and Iraq since. With regard to the Convention, it really comes down to the contracting parties. Beyond that, the reference to extending the benefits therein to other "powers" refers to legitimate state actors and, perhaps, even legitimate supranational actors like the EU (if they were ever to have their own fighting force). I think most reasonable people except the fact that Taliban and al Qaeda forces do not constitute either. The most persuasive legal counter-argument put forth is one that claims that the provisions of the Geneva Conventions have become customary international law and that they should therefore be applied by entities the world over in any use of force situation. However, as one might expect, customary international law is fluid and there is rarely one settled upon interpretation; usually when there is, the practice in question has been adopted by the vast majority of states and has been so for a long period of time. Even with respect to customary international law, states can object and assert there unwillingness to adopt it, doing so is considered legal. I believe that if you were to scour the statements of US officials throughout their country's existence, you would find several examples (and actions) noting that the US does not recognize limitations on its ability to conduct foreign policy and wage war outside of those it has explicitly bound itself to (i.e. Geneva Conventions). Beyond that customary law argument then, I think the debate about the administration's legal basis becomes a moral or ethical debate. One which we should have -- I don't doubt that benevolence with respect to ethics/morals is a bad thing -- but that isn't legal in character and I don't think that Mr. Del Monte's lecture should be criticized for not including that debate; he covered the legal aspects broadly enough.

Lecture 14: Comments & Questions

Mr. Del Monte, with respect to treating terrorism as something you can wage a war against, do you believe that is a viable long-term strategy.  Terrorism, while not in its current transnational form, has been with the world throughout its existence and you really can't wage a war for all eternity.  That said, wouldn't it behoove the US, beyond dealing with clear instances of state support or of failed states harboring terrorists, to depend on treaty terrorism as a crime?  That is what most of our European allies do and have done with some success.

Mr. Del Monte, you referenced your different graphs to say that the US wants to "push" the threat level down from high destruction/international to low intensity/local, I think that is a fine goal ideally but given the forces of globalization (where almost any individual can now be or act in an "international" fashion) and the democratization of technology, which has placed so many different types of dangerous instruments out in the public domain, isn't that an impossible task? At the very least, it is an extremely difficult task and one that, outside of the state supported or state harbored terrorist context, seems to counsel for a law enforcement and not a military approach (or perhaps the former aided by the latter). Thoughts?

Mr. Del Monte, with regard to the CSRT and ARB tribunals, were those created in response to the Hamdi decision? If they were in existence before that decision, were they adjusted afterwards? How are the tribunals composed, how do they operate? Once a determination is made, is there any further appeal that may be made (I realize this is getting off of war context but I am just curious)? Are there any individuals from Iraq or other spots in the world being held at GTMO, if so, what type of tribunals are in place for them?

As an observation, Mr. Del Monte, in commenting on Thompson's book, noted that the nation-state or Whestphalian system was based on the monopolization of the means of violence internally and externally; given that, I think it's rather interesting that over the past decade, that monopoly has been undergoing a certain amount of devolution as more and more private contractors are hired to do security related tasks. Should that signal the emergence of a new system of sorts?

Mr. Del Monte, does the US military, either directly with personnel (Special Ops) support or logistical support (planes, boats, vehicles, etc.) aid the CIA in conducting extraordinary renditions?

Mr. Del Monte, are other coalition members holding any detainees from Afghanistan (or were they at some point)?

Mr. Del Monte, I find the issue of returning detainees to their home governments rather fascinating. I understand that, under int'l law, states are prohibited from delivering persons to countries where they face torture, death, etc. However, as some recent research has shown me, different countries have different standards for interpreting that requirement -- for example, the British have a very high standard while the French seem to have a fairly malleable one. While the US has a "more likely than not" standard, what type of assurances satisfy that standard? Once persons have been delivered to their home governments or elsewhere, does the US actively keep track of what happens to them so that it can evaluate such assurances. Also, I understand that the persons may be tried by their home governments for crimes. Presumably, some of these countries have the death penalty and other punishments that we would consider inhumane, etc. (Saudi Arabia and taking limbs, for example) -- does the US deliver persons to such governments (i.e. they haven't been convicted by their home governments yet and aren't charged but its likely that they will be when sent back and that if they are they will face death, inhumane treatment, etc. -- does the US typically send back or ...). Moreover, if we have an individual who no longer warrants being held at GTMO and we can't send him to his country because of concerns of torture, etc. but we don't want him in our general population either, what do we do with him?

Ms. Sheaks, are interrogations of the type we discussed typically filmed? Would you be averse to filming such interrogations (I am thinking that if the tapes were held in some sort of classified status but available for review if charges or serious concerns were raised, that might go a long way in dealing with public worry)?

Ms. Sheaks, on a recent 60 Minutes broadcast, it was reported that a few FBI Agents complained to their higher ups about what they witnessed in interrogations at GTMO? Is there truth to that and, if so, what were they concerned about?

Ms. Sheaks, similarly, is was suggested in that broadcast, that the original commander of the detention facility at GTMO was replaced because he didn't sanction "tough" policies with respect to detainees (both in actually detaining them and interrogating them). Any thoughts?

Ms. Sheaks, with respect to the 20 techniques that were requested for certain detainees, have they all been proven effective (say, by other governments for example)?

Ms. Sheaks, putting morality and ethics aside for a moment, if torture is really ineffective, why do so many countries engage in it? From what I understand, even Israel employs techniques most of us would consider torture.

Ms. Sheaks, can the Army Field Manuel be overruled by officers in the field (if over a certain rank)? What do you think of Sen. McCain's legislation regarding the Field Manuel and detention and interrogation.