Well, they do tend to go by surnames in the Army...

This from today's Best of the Web Today:

Sticks and Stones

Today's New York Times features one of the silliest op-eds ever. The authors are Wesley Clark, the retired general and 2004 presidential candidate, and Kal Raustiala, director of the UCLA's Burkle Center, where Clark is a fellow. (The Burkle Center is named for Ron Burkle, a billionaire pal of Bill Clinton.)

Here is their argument:

Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals. . . .

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. . . .

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.

By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state's responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status. . . .

The more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.

This is so vapid, it does not even rise to the level of sophistry. The authors argue that the U.S. should "designate" terrorists as "criminals" rather than "unlawful combatants" for purely rhetorical reasons: because calling someone a "criminal" implies less "respect" and does not "dignify" him.

The rhetorical argument can be dispensed with in a single rhetorical question: What do these guys think unlawful means?

Come, James, this is no surprise! It's only the natural result of liberal immigration rhetoric. They refined 'illegal alien' and 'illegal immigrant' down to 'undocumented worker,' 'migrant,' or simply 'immigrant.' If you're like me, and favor increased immigration combined with a new emphasis on assimilation and serious enforcement of immigration laws, that makes you anti-immigration in their rhetoric.

So why should it come as any surprise that Wesley Clark can't tell a soldier from an unlawful combatant? I bet he can't tell an immigrant from an illegal immigrant either. With liberals, it seems, the first word doesn't really count.

Comments

[Kenneth Pike]

Clark and Raustiala don't seem to understand what the "Unlawful Combatant" designation is for--that's what you call "criminals" (among others) in a war who do are not soldiers of a recognized state. Ironically, this is largely a convention of so-called "international law," which (generally, and as a general rule) brings down the ire of conservatives, not liberals.

Actually, the entire op-ed seems like a thinly-disguised refrain on the problem of indefinite detention; after all, if terrorists aren't combatants, lawful or otherwise, the only meaningful change in their status would be that military tribunals no longer apply and the accused must be released--to the courts for trial, or to their countries of citizenship (interestingly, when given the choice between trying an accused terrorist or sending him home in Hamdi v. Rumsfeld, the military chose to release the accused).

Whether or not we should afford these individuals some bizarre "semantic dignity" is irrelevant; the better question is, when you declare "war" on an amorphous concept like terrorism (or drugs, for that matter), do offenders spontaneously become combatants?

"We have always been at war with Oceana" may be a tough sell without a Ministry of Love, but "We have always been at war with terrorism" has a nice ring, don't you think?

[Cory]

The only reason this isn't a no-brainer, legally speaking, is because it is politically convenient for it to be in question. Prisoners at GTMO are, with a few (still valid) exceptions, prisoners detained fighting the Taliban in Afghanistan. The Taliban is a state. It is a state unrecognized by the U.S., but the Geneva Conventions don't care. To be a *lawful* combatant, that is, a valid Prisoner of War, you must a) be a part of that government's regular forces, or b) be a part of an organization fighting for that state that adheres to the following guidelines:

-Wear a fixed distinctive insignia (uniforms).
-Have officers who are responsible for their troops.
-Adhere to the Geneva Conventions.

They fought against us in hostilities between the United States and the Taliban. They did not wear a uniform. To the best of our ability to determine, they had officers, though they were so disorganized, many of these officers didn't realize they were so designated, and many more didn't care. *Most* importantly, they did *not* adhere to the Geneva Conventions. They attempted to ambush U.S. soldiers by waving flags of surrender and performed summary executions of U.S. soldiers they had taken prisoner. They are unlawful combatants, and they may be tried by a military court for such war crimes as they have committed. Further, because they *are* combatants, regardless of their classification, they may be detained until the hostilities between the United States and the Taliban cease. Last I checked, we're still fighting the Taliban.

[Kenneth Pike]

Cory, I suspect you've demonstrated for us why the op-ed references Al Qaeda instead of the Taliban. The powers-that-be have been playing fast-and-loose with the differences between Iraqi or Taliban forces that don't like our occupation of what used to be their country, and actual terrorists belonging to Al Qaeda cells. The average American isn't even cognizant that Saddam and Osama were ideological enemies.

While it may seem like a "no-brainer" with regard to those Taliban soldiers in GTMO who were taken in combat, your note that they may be detained "until the hostilities between the United States and the Taliban cease" is radically altered by this line-blurring between combatants and terrorists, because a war on a concept like terror need never end. Further, the military's power to detain without trial has historically been a matter of expediency--when the civilian courts are closed and everyone is focused on the immediate armed conflict, convening a military tribunal is a waste of time and resources. In the present conflict, however, there are ample opportunities and resources to try and sentence, either via military tribunal (in the unlikely event that an open trial might actually impact state security) or through the civil courts, every single detainee. Consequently, indefinite detention without a trial feels more like spite than expedience.

At any rate, I think it's pretty clear that the op-ed is fudging terms in an attempt to stoke these familiar fires. The problem as I see it is that everyone is so busy fudging terms that reasoned discourse is ultimately moot; the political battle-lines have been drawn, ideology has been jettisoned, and pure partisan power-plays are the order of the day. The more things change...

[Dan]

I don't think conservatives have any problem with the Geneva Convention (and its associated treaties). In fact, I propose that conservatives who tend to favor military action as a tool of international politics respect the Geneva Convention highly, as it codifies a degree of honorable conduct into war and makes warfare that much more useful as a tool.

Where the Geneva Convention catches my ire is when it is followed faithfully by one side, and not at all the other. We are a signatory, and bound to obey it when fighting an enemy that is also a signatory. But strictly applying the rules of the Geneva Convention to enemies who violate it rules enthusiastically is perverse. By acting as an Army and pursuing military goals, without uniforms and military hierarchies, the terrorists held are not lawful combatants, and therefore are not protected by the Geneva Convention. They are not prisoners of war. They are not domestic criminals. The closest historical analog is probably to stateless pirates, or to spies (of any country) taken prisoner out of uniform or in the wrong uniform during WW2. Summary execution is the traditional punishment. And they can be glad we don't use that approach.

Regardless, I believe they are entitled to nothing by law, and to due process only by the inherent, inalienable rights of men. And they'll get their due process, I am sure. But they are entitled to no speedy trial, and should have no access to US courts. (Excepting those few cases where the person is a US citizen. They should absolutely be turned over for prosecution, not that indictment for Treason is preferable to a GTMO tribunal.)

--

The complaint that the "War on Terror" is a war on an amorphous concept has always been a straw man. The GWOT is a rhetorical device, and nothing more. A good analog, oddly enough, is to the Second World War. We describe it as a single war, when it was arguably two separate wars. They're hard to separate, because the opposing forces were allied, but there was only very limited mutual-support between the theaters on the Axis side, and the Soviets didn't declare war on Japan until two days after 'Little Boy'. Japan invaded China in 1937, two years before Germany invaded Poland. Defeating Germany did not defeat Japan; V-J day was more than three months after V-E Day, and would have been even later than that without the advent of atomic weapons.

In the same way, what we call the GWOT is a category, useful for sorting and contextualizing conflicts and actions, but not really a war in itself. Is it the best category? Maybe not. Got a more accurate name that wouldn't be political suicide to speak aloud?

--

One last thought, in reference to Kenneth's last comment. I think it's a safe assumption that some of the GTMO detainees in question can justly be accused of many serious capital crimes. I think it's also a given that even if we were on well-trodden legal grounds here (not likely), there is no general agreement what the appropriate legal precedents are.

Would it be wise or prudent to try and execute prisoners according to any system at all before serious jurisprudential and political doubt about the legitimacy of the trials is settled?

--

(All irrelevant to the original point that a retired four-star general appears oblivious to the idea that there's some differentiation between a soldier and an 'unlawful combatant.')

[Cory]

This discussion is sort of rambling off in multiple directions, so I'll try to respond to points in a quasi-logical order, but don't hold me to it.

For a moment, please forget everything the President, Vice President, and assorted Cabinet members have said on the subject. Our current Executive is notorious for opining publicly on legal issues of which he knows nothing. I can tell you, from personal experience, that the system continues to function the way it is supposed to, regardless of how the President of the United States thinks it *should*.

It absolutely, positively, does not matter if a given detainee at GTMO is a bayat-swearing member of Al-Qaeda or not. It does not matter if they fit *anyone's* definition of a "terrorist." They are not at GTMO because they're terrorists. They are at GTMO because they engaged in hostilities against the United States of America, siding with the Taliban, aka the Islamic Republic of Afghanistan, and did so without regard to the Geneva Conventions. There are a few, a scant few, exceptions, every one of which follows a similar trend, from a different theatre. (Please note that Iraq and Afghanistan are *not* the only theatres of conflict within the scope of GWOT.)

Their detention and the possiblity of their trial are two utterly separate issues. They are being detained because hostilities between the U.S. and the Taliban are not over. If released, there is a high probability of their return to combat, and we have every right to prevent that. There are a legion of military lawyers upon whom fall the duty of ensuring detention at GTMO is permitted under all applicable U.S. treaties, to include the GC. They constantly monitor the conditions and status of all the detainees there.

The only genuine legal issue concerning the detainees at GTMO is a) can they be put to trial, and b) if so, for what? This is where the concept of an "unlawful combatant" comes into play. If they are not a valid combatant as determined by the Geneva Conventions, then their acts of combatancy are criminal in nature, and the detaining Party (the U.S.) may punish them for their criminal acts. The GC does *not* stipulate how they should be punished, how they should be tried, or in what manner a given crime should be punished.

The GC also does not give any guidance concerning prosecution for acts committed outside the realm of combatancy. Khalid Sheikh Mohammed is accused of planning 9/11. Whatever happens concerning that is completely separate from the fact that he actively engaged in hostilities against the United States in the Afghan Theatre, and even if he is tried and subsequently aquitted of all charges concerning 9/11, the U.S. has every right to detain him until hostilities cease between the U.S. and the Taliban.

I have a much longer thought, about the nature of the accusations leveled against the administration, but it would take a lot more time than I want to put into expressing it to come out right. ^_^

[Cory]

For Dan, concerning those who follow the GC, and those who do not:

The GC does not direct our actions only against other signatories. In *all* acts of combatancy, we are obligated by our ratification of the GC to heed it. That having been said, the GC simply does not work as a law in the classical sense. Under the GC, the powers of enforcement are granted to the victim, under the reprisal system. If a contracting party to a conflict against us violates the GC, whether or not they have signed it, we as the victim may commit an act of reprisal, something that in and of itself violates the GC, against them.

For example:
It is April 3, 2003, and U.S. troops have just crossed the "line in the sand": the line beyond which Saddam has sworn to unleash chemical weapons against the United States troops. The use of chemical agents is a violation of several provisions of the GC. Iraq is not a signatory of the GC, nevertheless, we are obligated not to use chemical weapons against them. If however, they attack U.S. troops with mustard gas artillery shells, we would be allowed under the GC to commit an act of reprisal. As a result, we might employ a Tomahawk Missile armed with a nerve agent warhead against a formation of Iraqi Armor. We might not as well - the GC does not demand acts of reprisal, only permits them.

There are only two guidelines for committing an act of reprisal: first, it must be similar in scope. If we go to war with someone, and they arm their special forces soldiers with hollowpoint rounds, that doesn't mean we can nuke their capital city. Second, you absolutely may not commit an act of reprisal against a prisoner, even in response to violations of our soldiers' rights as prisoners.

[Dan]

Cory, I absolutely yield to you in questions of the Geneva Convention, the treatment of prisoners by military forces, the nature and organization of al-Qaeda, and pretty much everything else related. You know whereof you speak. Certainly the GC binds us even when fighting a non-signatory enemy.

So the point, in the end, is that Geneva has very little relevance to the discussion of GTMO's residents?

[Dan]

As a side note,

I think the no-exceptions ban on reprisals against prisoners may be a mistake . Lincoln explicitly repudiated that principle in General Order 233, which promised reprisals against Confederate soldiers in response to mistreatment of black prisoners. (It worked - the CSA didn't go through with its threats.) Certainly, the GC ban has done little to protect our soldiers in most places, in most conflicts of the last 50 years.

Not that I'm suggesting reprisals would have any effect on al-Qaeda, the Taliban, Saddam's people, or anyone else we've been fighting in the last 50 years. In fact, that goes back to the same old argument that the last remotely honorable (on the battlefield) enemy we've faced was Nazi Germany.

The positive argument for a blanket ban is that it does not leave any American soldier, top to bottom, wondering whether to order or carry out a reprisal on prisoners. The whole question is closed in the field, which is almost certainly for the best. Keep it on the level of statecraft, like Lincoln did, and you can weigh the potential benefits of a threat, against the risk of converting the field into a pyrrhic bloodbath.

[Kenneth Pike]

I think its relevance is limited primarily to the question of whether the detainees are "lawful" or "unlawful" combatants--and once they're determined to be unlawful combatants, GC POW protections no longer apply (though general human rights do). This was one of the major points of discussion in Hamdi v. Rumsfeld (the other was Hamdi's U.S. citizenship).

Which is actually why all this GTMO discussion is extremely relevant to the original point. I doubt the good General is truly ignorant of the classifications involved; rather, the law is not fixed and is largely a matter of mincing words. Both lawful and unlawful combatants fall under military judgment, and military tribunals differ in many important ways from civilian courts (e.g. detainment, often without trial, until the end of the conflict). But if you can convincingly argue that some (or all) of the GTMO detainees are merely "criminals" and not "combatants" (of either type), then the detainees must be released to the civilian courts for trial, or set free.

Theoretically, the military would prefer trials, though Hamdi's ultimate treatment makes that a bit of a question mark, and as Dan points out it's not clear how the criminal courts would handle these folks. We sentenced a couple of German spies to death back in World War II and the legal community still argues about political expediency versus rule of law in that particular case (I believe the spies were ultimately spared by the President, but I can't find the case right at the moment).

At any rate, that's what I think the op-ed is really about--carving out some new approach to the fight over GTMO detainees by drawing unnecessary distinctions. It's silly on a number of levels, but I don't see any other possible benefit in framing the argument as Clark and Raustiala have. And even then, it's kind of a ridiculously long shot.

[Cory]

I agree wholeheartedly Kenny - Clark knows perfectly well everything we're hashing out here. It's convenient to come up with a new way of looking at it, since the old way clearly isn't working for them.

On a side note, reprisals are forbidden against unlawful combatants as well. There are two separate classifications of detained person, however, with two separate levels of rights. A notable right not afforded to an unlawful combatant (as a Protected Person) that a lawful combatant (as a Prisoner of War) possesses is the right to mail. We could, in theory, deny those at GTMO any contact with the outside world - except, possibly, legal counsel. We could *not* feed them less or lower quality food than their guards eat. As far as whether that's a *good* thing or not... if we allow reprisals against prisoners, then all prisoners will always be abused. It doesn't matter what it looks like on paper, I can guarantee you that end result. It's exactly why the prohibition against prisoner reprisal was added to the original Hague Conventions. I firmly believe that one of the greatest signs that our country is a just and right one is that I can work in the field I do without experiencing a moral dilemma. I could not countenance a line of work that amounted to High Inquisitor.