A Reply to a Reply on the Habeas Thing

I posted a comment this morning but it seems to have been lost. So I’m going to do it here, were I feel less likely to lose 15 minutes of typing. This is basically and extended comment to this post at the Debate Link.

It appears that I didn’t locate the “correct” Geneva convention, because the articles you cite are not the same as the document I linked (and found). If you have a link to an online copy that you are using, I’d appreciate it.
I have now found the full document

When I had written:

we must now ask our soldiers to document, detain, mirandize(?), and offer legal counsel(?!), and then testify in court to the circumstance of their apprehension.

The question marks were meant to indicate that while I didn’t know what might be required to provide enough documentation to accompany captured illegal combatants to verify that they were indeed combatants, I didn’t seriously think Mirandizing would be one of them. But that those methods are getting close to what the requirements of habeas for every prisoner might require in practice. Your “ironic?” insistence that was a major point of mine is either a (unfortunate) debaters tactic or poor writing on my point, alas, more likely the latter. When you wrote,

If they challenge the detention, we can say “you were caught here, on this date, carrying arms, out of uniform.” Case dismissed. Gosh, that was easy.

Without the testimony of the soldiers/officers that caught him and accompanying paperwork/documentation the detainee would say he was a civilian unfairly caught up in a sweep. If no evidence, testimony, or corroborating documentation then … Gosh that’s just as bad as the case as we had before, if “it is that easy” and your “habeas” offers only protection on paper, but not in fact. Gosh what an important protection provided. Soul of America, on paper … no difference in fact. What a lawyerly pretention. The alternative is to put the documentation burden on our soldiers that is equivalent to a policeman’s, which is what I protested as impractical. You seem to insist that the “fix” is easy. My point it is it isn’t.

It is unclear why you kept harping on torture and “harsh interrogation techniques” because in a final paragraph I thought I made it clear I didn’t support such actions.

For the sake of time, I’ll jump to your “conclusions” and then offer mine.

  1. Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously hideously unfair and immoral.

    You seem with “gosh that was easy” to find that “you were caught here, on this date, carrying arms, out of uniform. Gosh that was easy” … but if the punchline is “and the sentence is execution by lethal injection to be carried out at sunset” do you still agree I wonder. How about trying them via military tribunal and if found guilty of war-crimes (fighting out of uniform) just execute them, or if that seems to encourage their honor based society sentence them a punishment chosen by our that might best discourage such behavior.

  2. Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.

    “Gosh”, and I didn’t seriously suggest it either. I did complain that the required level of documentation to detain/sentence/convict and perhaps execute men for war crimes is more than we might desire an objection you seemed to have basically.

  3. Post-detention Habeas review to determine if there are grounds for detention–tried and true since 1215!–seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidentally being caught up in the detention system, which is a recurring problem in the status quo.

    And wouldn’t change matters. Every prisoner would claim an out any documentation would say otherwise. No change. What you are insisting on would then grant more rights to illegal combatants than legal ones. What a wonderful way deterrent to help protect civilians and stop the rampant rise of war-crimes … not. That isn’t to say your objection isn’t right, that post-detention Habeas review isn’t the solution. But you haven’t demonstrated that in this sort of conflict that its either practical or helpful. Halting a small number of accidental incarcerations at the cost of a much larger number of civilian casulaties seems unwise.

  4. Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.

    Again, my articles don’t match your articles. I’ll look further. See below, I think your reading isn’t necessarily correct

  5. Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.

    As above.

The points I tried to make were as follows:

  1. To insist that every soldier carry equipment to document, demonstrate, and possibly have to testify over the detention of every illegal combatant captured in every situation is an odd requirement in the mission of waging war. My objection as to the documentation requirements his (as I insist) academic instistence that providing evidence to support the taking of each prisoner individually is a high burden.
  2. Mr Schraub writes:Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Ok, now write some rules of engagement that tell us how to tell the difference. That was precisely my starting point, the continued insistence on putting up road blocks without admitting that this is a horribly messy situation and is very complex and that your simple “Gosh that was easy” rhetoric is disingenuous at best. The point is the rules of engagement are very complicated now, because the enemy are all fighting as illegal combatants.
  3. The Geneva Conventions, to the best of my understanding, where instituted as a way of setting standards of practice in warfare primarily to protect from collateral damage, i.e., loss of civilian life and property. It appears as if Mr Schraub’s interpretations of these conventions yield more lenient, not less lenient treatment to illegal than legal combatants. If that is the case, then I submit that these this treaty needs to be renegotiated or violated.

    The primary concern here is the protection of civilians. The enemy in Iraq and the Middle East in general have consistently violated the Convention as a matter of general practice, i.e., their “rules of engagement” as such are in direct violation of any sense of legal combatant status and consistently act in such a way to weaken such protections, which is specifically in contravention of the allowed “ruses”, and consequently have indeed endangered and caused the death of countless civilians. What is needed by anyone (even perhaps by Mr Schraub) is to first and foremost consider the best and quickest way to send the strongest possible message that such tactics are not acceptable. If that method is granting or denying habeas, giving out candy corn or chocolate kisses, putting in public stocks or whatever. These methods need to be done post haste. However, as I pointed out in my last essay … I don’t feel torture is or even should be considered as one of those methods. I’m not sure why Mr Schraub seems to so often intimate as such, perhaps insulting me that way is a “debaters tactic”.

  4. Ok, now it seems I’ve found the appropriate G.C. document. Articles 40 and 41 do not clearly define at least as I read it to expressly forbid the use of rules of engagement as I had described earlier contra Mr Schraub’s remarks. That is,

    Article 40. Quarter
    It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.

    But, one might ask, is an adversary considered protected by this rule of engagement if he is in actively engaging in war crimes at that time. In the next article

    Art. 41. Safeguard of an enemy hors de combat

    1. A person who is recognized or who, in the circumstances should be recognized to be hors de combat shall not be made the object of attack.

    2. A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;

    Currently, while driving to and from a job-site, I’ve been listening to “Thunder Road” on a library BoT. This is an account of the 3 days of armored assaults into Bagdhad which ended the war. In the first day, after the umpteenth time that Iraqi soldiers repeatedly feigned unconsciousness or incapacitation so that after the tanks passed, they could rise up and fire upon them, the tank column was ordered to “double tap”, i.e., shoot the “dead” to “make sure”. This ad hoc rule of engagement was in contravention of a reading of this article. But I think it was the right decision. When engaged with an enemy whose rules of engagement and practices are explicitly in contravention of that treaty at times you are forced by necessity to also contravene the treaty, and I think that insisting that at all times we “play by the rules” is wrong (or perhaps at best just ivory tower naiviete).

    The point is, I don’t think it’s clear that not giving quarter to those non-uniformed mortar-men and snipers firing from mosques or hospitals is a strictly speaking contravention of the treaty. Yes, it does use the term “adversary”, but it doesn’t necessarily I think apply to soldiers in the act of committing numerous war-crimes simultaneously. On the other hand, as I mentioned earlier, I’m fairly certain that this (not accepting surrender) is not necessarily a wise rule of engagement anthropologically speaking. The point is to find a tactic that will make it the least likely for the enemy to seek to fight illegally.

  5. Question, would this

    A mercenary shall not have the right to be a combatant or a prisoner of war.

    describe the foreign nationals. By Convention, then, they are not “allowed” any rights it seems at least by this Convention.

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  1. Alright, I have I think 5 “brief” comments. And just so everyone is clear, all the articles I cited to are to the 1st Protocol of the Geneva Convention.

    1) Torture: My original post, dealing with the Military Commissions Act, labeled it “evil” in part because it allows folks to be tortured (bad inherently) without any sort of due process to determine they are guilty (really bad inherently). Your last post was a response to that, so I’m pointing out the torture link because it buttresses my evil-point. I’m glad you don’t support torture theoretically, but you’re defending a bill the allows it without any sort of judicial oversight. That limits the moral brownie points I dole out.

    2) Processing Prisoners: As I pointed out in my post (right where you stop blockquoting), I do not think it is a particularly onerous burden to require some degree of processing folks who we capture. When they enter our custody, we should ask some basic questions and jot down some basic notes so we know how they came to be in our hands (on the battlefield, bounty hunter, etc). Not only does this not strike me as all that difficult, I’d be very surprised if we don’t do it already. So I don’t think this is me stuck in academic-fairy land. It seems quite rational and not all that difficult to pull off (and again, I’d wager $10 we do something to this effect already).

    Remember, the big issue is not alleged ICs caught on the battle-field: that’s an easy case to make (as it should be–it’s usually quite obvious these guys are ICs. Hell, I’m not even sure they would challenge it). The big issue is the folks who were not caught on battlefields, but landed in our possession through some other means. Habeas review is absolutely crucial for these guys. I’ve yet to hear Mark’s plan for dealing with them (or even an acknowledgment that their case exists).

    3) Rights of illegal combatants vis-a-vis legal combatants: You keep alleging that I give more to the former than the latter. I’m very confused. The only additional right I give to the former is the right to argue that they are, in fact, the latter. I suppose we could also let legal combatants argue that they are legal combatatns, but it strikes me as redundent. But if that is the price we need to pay for Mark’s assent, I’m cool with it. I do not know any situation where I advocate more leinant treatment for ICs–in fact, once we ascertain that they are, in fact, ICs, I’m perfectly happy to treat them less leinantly (once they are detained–battlefield tactics is a separate isue). On the battle-field, we ought to remain committed to adhering to the laws of war even when our enemies don’t. That’s what makes us good guys. And while it treats LCs and ICs equally, it certainly doesn’t give additional rights to the ICs.

    4) Articles 40 + 41 and Perfidy: Do they apply to people in the midst of committing war crimes? Short answer, yes, they do. Long answer…yes, they do. The text itself, as Mark admits, uses neutral terminology encompassing both LCs and ICs. Later in Article 41 there is insinuation that there might be additional protection on top of what is previously mentioned for POW candidates (Art. 41 sec. 3, First Protocol), but that just shows that the quoted section applies to combatants of any stripes. So it definitely is a war crime, and it doesn’t stop being a war crime just because it would be more convienant and safer for it to stop being a war crime do to illegitimate tactics on the other side.

    Mark points out that the risk of perfidy makes life really sucky for Americans trying to follow the rules. I made the exact same point. But again, that life is sucky doesn’t mean we get to punt our moral obligations. Being the good guys is a bitch sometimes. But I shudder to think at what it would be like to switch to the other side.

    5) Miscellania: Terrorists are not mercenaries (they don’t meet the requirements set out in Article 47, Sec. 2, esp. part “c”). The purpose of Geneva is manyfold–protecting civilians (I’m not sure how a “double-tap” policy of anyone lying prone on the roadside accompolishes this anyway, and I’m definitely not sure how allowing people who possibly are nothing but civilians to rot in jail as “terrorists” forever without any legal recourse protects them either), making sure that detainees are not railroaded to justice, and protecting people in general from certain brutal and inhumane tactics (both on the battlefield and in detention) are big ones. Moral obligations constrain even “the most effective” tactics–the best way to send a message that terrorism is unacceptable might be to nuke Mecca, but it would still be wrong. The most effective way to root out a terrorist stronghold in Fallujah might be to firebomb the entire city, but it’d still be wrong. The most effective way to get information from a detainee might be to sodomize his 4-year old son before his eyes, but it’d still be wrong. Morality matters. And even if random detention without cause would, in fact, be the most effective deterrent to terrorist strikes (and I’m extraordinarily skeptical) it’d still be wrong. Finally, Mark has yet to provide even the slightest indication of how he proposes to protect innocents swept up. Nor has he responded to my (and Prof. Martinez) general point that–when dealing with detainees–deterrence ought to come from the punishment imposed, not the process by which the punishment is meted out (i.e., imprisonment for 20 years, not “lack of trial”).

  2. probligo says:

    With respect to the “terrorist/NC/mercenary” debate, can I suggest a slightly different approach.

    Much of the Conventions were written in the shadow of WW1, and were reconsidered and renegotiated after WW2.

    In both wars, there were active “freedom fighters” in occupied Europe. The most well known would be the French Resistance and it that example that I put forward.

    As you will know the Germans had no hesitation in treating “combatants in civilian dress” quite differently and summarily from POW’s.

    The current form of the Geneva Conventions, I believe, have been written to provide a measure of protection for “combatant civilians” (yeah sock me for making up the terminology here – I am at the end of a 14 hour day and thinking with my bum). To provide those protections – trial where possible, habeas protections, – whether to service or civilian combatants is what the “good guys” intended. These relevant parts of the Conventions I believe are largely written to protect civilians who were rightfully fighting to protect their homes and families, to expel the occupiers from their nation.

    What is happening now is that the US is in the position of having to apply those rules as they were intended. It is difficult because they suddenly find themselves in the very awkward position of opposing rather than supporting the civilian combatants.

    David, I agree –

    That the laws and rights of the US (as they have been in the past) and of most western nations should provide civilians (combatant or not) with full civil rights and protections at law.

    To change those laws so that they come into conflict with standing Treaties and Conventions (not just the Geneva Conventions but international law including agreed definitions of war crimes) is wrong.

    To close –

    Some 25 years ago there was a state-sponsored terrorist attack on civilians in Auckland Harbour. The two French agents who were caught (there were up to three others who were not) were tried under NZ civil law. If NZ had used the approach being taken by the US at present – changing laws retrospectively, detention without trial or review, torture – how long would our international reputation and support have lasted? It would be gone by lunchtime.

    Isn’t it a wonderful thing that GWB had the foresight to remove the US from the threat of the International Criminal Court.

  3. Mark says:

    So, if I read you right, you’re ok with giving essentially meaningless/token habeas to combatants picked up by our soldiers (that is no testimony on their part might help their cause, and tacit inclusion from the prisoners rounded up after firefight trumps any testimony) because your concern is the rights afforded to those not picked up on the battlefield. Ok. I’m fine with that complaint. But you don’t admit that you’ve effectively hamstrung the former or you require documentation standards (and requirements to testitfy) on soldiers that I think are not only unnecessary but wrong.

    On torture, I’m not “defending” the position of torture as written in the bill. I stated my position. I’m confused why you assume that my paragraph on torture can be read as a defense of the bill for it doesn’t reference it and pretty much has nothing to do with it.

    On your assumption that right to surrender and such applies to men in the act of committing war crimes … I disagree. I think your Academic/”dudly doo-right” refusal to admit to the reality of combat is either disengenuous (at best). How many men do you lose to being shot in the back by guys feigning being wounded or killed before you change your rules of engagment. You think this number is infinite. I disagree.

    Yes I know moral constraints affect the “most effective” way of convincing illegal combatants to stop doing that, firebombing and nuclear attacks on holy ground is clearly not just immoral but will clearly not work as an effective strategy, is that the straw man fallacy? How about a tactic that might be less stupid. I’m not saying that every time they contravene GC we must follow suit. I’m saying when met with an opponent whose rules of engagment are in clear violation … decisions need to be weighing protection of civilians, our soldiers, and international convention, and that GC/international convention doesn’t automatically win.

    For a less “straw like” example then firebombing or nuclear strikes, “Disfigurement” is contra-Geneva but if tatooing, or marking with indelible or hard to remove ink the foreheads of captured illegal combatants some Arabic phrase like “I am a Pork Eating Quoran Defiling Coward”, or “English Pig-Dog whose mother smells of elderberries” or some such on foreheads and then releasing them (to public shame and embarassment) does work to discourage their continued tactics of using civilian shields, not wearing uniforms, and using “ruses” of war that violate the Geneva conventions in ways that seriously endanger civilians then I’m all for it.

  4. I think there are ways to deal with possible perfidy besides a “no quarter” approach. Even a “double-tap” of “dead” folks on the road is not too bad (b/c either they are dead or they’re faking). But not accepting surrender is different–just keep your gun trained on them until they get close, then restrain and pat them down. Probably not perfect either (suicide bombings and all that), but its a policy that protects our soldiers and doesn’t violate Geneva. I don’t think that respecting human rights is an “academic” issue, and it’s rather telling that you keep trying to push morality back into the rhetorical textbook, lest it actually play a role in the real world.

    The Habeas and torture issue. Well, if you agree that we need habeas for the non-battlefield guys, and agree that torture is bad, then at least we’re in agreement with my original assertion that the Bush admin bill is demonstrably evil, because it punts both. So while now we’re finagling over how evil it is, we can both join a statement decrying the appalling inhumane bill just passed by our congressmen and senators, and pledge to work for their defeat. Because legalizing torture and imprisoning innocent people forever are significant enough moral wrongs that they are worthy of our collective outrage. Right?

    The sphere you are worried about (fake documentation asserting that someone was caught on teh battlefield carrying out attacks when they weren’t) striks me as a relatively small class comparitively–how much fraud do you think American soldiers are committing? Again, I think the bigger problem isn’t deliberate malfascence, but negligence or lack of due diligence in non-cut and dry cases (my Ahmed Schmoe scenario). So I think its evil on more grounds than you do, but it still seems to breach at least two redlines you’re willing to accede to–bigger ones than the one you think won’t be solved. But again, I think you’re underestimating the effectiveness of Habeas review. The problem you outline (people denying the documentation) is as large a vulnerability in normal criminal law (“you were arrested here carrying this gun” “Liar!”). We generally accept the testimony (written/oral) of law enforcement (in this case, military) over the accused in such cases if its only he said/she said. But if they can bring additional evidence to bear on their side, at least now there is a venue to hear it. Clearly, giving habeas has at least some comparative advantage over not giving it–in the Status Quo, there is no hope for the innocent, in my alternative, there is. I think that the “hope” is higher than you do, but even if its one innocent prisoner out of 100 that goes free, that’s enough to justify it by itself.

    So at best, you’re telling me that Habeas review won’t fix one (likely small) class of problems, but it could fix two very large ones that you admit are problems. I feel like I’m definitely winning the weighing game here, especially given that you have no offensive reasons against letting prisoners assert the claims (only defensive mitigation attacks saying they might not work as well as they should).

  5. Evil of a Different Sort…

    I’ve been debating with Mark Olson about the relative horribleness of the detainee treatment bill. As far as I can tell, we both now agree it does some really bad things, and only disagree as to how evil it is. But since Mark seems to agree that a) t….

  6. Mark says:

    The double tap is a violation because many are just wounded and not actually dead, i.e., legitimately hors de combat.

    You keep intimating that the moral questions involved in setting up rules of engagement are simple, cut and dried, and always must defer to the Convention. I think you are very very wrong about that.

    On not accepting surrender first off, a primary reason it isn’t considered except in drawing room situations like these essays it that currently the particular war crimes of fighting out of a mosque, fighting out of uniform and so on is not considered a capital crime in the theater. If that decision was made or if you found a enemy in the process of committing a war crime for which death sentence was the clear result on conviction … then why is it so obvious that you must accept surrender? To insure legal professionals job security? The other side of that question is, should such behavior in this theater be a mortal crime?

    You have also completely evaded the issue of suggesting any realistic mechanisms for discouraging illegal combatants. The purpose of the legislation of which you are complaining is it seems largely aimed at combattting and discouraging such actions.

    As I said, I will agree with you that there are serious problems with it, however I will not criticize it or ask for its repeal until I have a better solution. Unfortunately, your solution is “don’t do that” … but don’t suggest an alternative. How “Blue” of you.

    So, tell me how to discourage the small side in asymmetrical combat from endangering civilians? What means might stop Hamas, for example, from firing its rockets only at civilians and to attack military targets, or to stop embedding their combatants in sensitive civilian locations like schools and mosques and hospitals?

  7. First, briefly, I oppose double-tapping the wounded. That would be an example of a clear war-crime. If we’re sure they’re insurgents, then take them into custody. If we’re not sure they’re insurgents, then how do we justify double-tapping?

    As to my alternative, I am giving a response to your question. You just choose to ignore it.

    Fighters who fight under the laws of the war cannot be punished once captured. They become POWs, which is not, as I mentioned, a punative measure. Being a POW is not morally akin to being imprisoned for a crime–it is solely to prevent them rejoining the fight. Conditions are supposed to be good in POW camps (not just “not barbaric”, but good). Fighters who break the law of war can be punished–specifically, they can be tried and convicted of war crimes. Then we toss them in jail, or, if the circumstances warrant it, execute them. I don’t know if firing from a mosque is or should be a capital offense in any given case. I do know that this is a question that, if possible (i.e., the offender surrenders), should be answered in court, not via summary execution.

    Again, criminal law provides a clue (this goes back to the Martinez quote I’ve kept on referencing). If we want to deter robbery, the way we go about doing it is by saying “if we catch you, we’ll put you in jail.” It is not “we will burn down the city block you live on”, it is not “we will give no quarter if you try and surrender to the police, but will shoot on sight”, and it is not “we will drip burning acid on you and beat you into unconsciousness”. And it is certainly not “we will deter robbers by not giving suspected robbers a trial.”

    Basically, the controversy between us comes down to one simple issue. You want to create the deterrence embedded in how we prosecute the combat. I want to create the deterrence embedded in how we punish those we capture. Both have some deterrent effect. The former might be more effective (though the latter has some efficacy too, and the former might be less effective if it enflames anti-American sentiment by causing us to lose whatever “beacon of freedom” luster we possess). The latter has the advantage of being within the constrains of morality. Since you agree that acting morally often requires to abandon the “most effective” option, and since I’m providing an alternative that does a passable job of what we want it to do, my alternative flows through. Although even if it has no deterrent effect whatsoever (and since I think it would, this is a hypothetical), you’d still have to show that the prospective gains of enacting your policy are large enough to justify the moral violation (i.e., that we shouldn’t just “take the hit”). In otherwords, we have to weigh the harms of not adequately discouraging illegal fighting against the harms of becoming brutes. If the upshot of not enacting a “no quarter” policy is “al-Qaeda blockades Charleston harbor”, then I might be swayed. As it is, I suspect at worst we might see a modest uptick in terrorism, and I don’t think it’s “academic” to say we might have to accept that if the alternative is abandoning rule of law.

    I’d also briefly note that your reason for why you’re not condemning the current bill doesn’t hold water, because the parts you dislike are severable from the parts you do. E.g., You think that a) we can do all manner of nasty things to illegal combatants on the battlefield, but I believe I’ve convinced that b) any detainees need to have access to Habeas, and c) that we can’t torture folks. I think we generally shouldn’t be able to do all three. Okay, that’s fine, but since the continuation of policy “a” is in no way predicated on the continuance of “b” and “c”, what you logically should be doing is calling for the repeal of “b” and “c” and condemning congress for passing them, while saying “a” should be preserved. I’m sure that there is some provision somewhere in the detainee treatment bill I support, but I can still condemn the parts I dislike and label their enablers evil for passing it. You should hold yourself to the same standard. There is no reason to pull your punches on “b” and “c”–and their enablers–because you still support “a”. They aren’t dependent on each other.


    So, my argument here runs as follows
    1) My alternative is punishing wrongdoers via a judicial process–e.g., prosecution for war-crimes
    2) Compared to becoming barbarians on the battlefield, my plan
    a) Might have more of a deterrent effect against terrorism because it reduces anti-American sentiment and proves we are as committed as we say we are to justice and rule of law. Acting barbarically could convince persons that we are evildoers and must be resisted (as someone once said, Abu Gharib was the best recruitment poster al-Qaeda ever had).
    b) But even if it’s less effective, it’s still somewhat effective, which means it wins because it is also moral (and you agree that morality demands we sacrifice “the best option” if need be).
    c) But even if it was entirely ineffective, it’d still be superior because the payoff of the barbarian option (averting a modest uptick in terrorism) is not high enough to justify dismantling rule of law.

  8. Mark says:


    Just to clarify on the “double tap” order, in the account of the armoured “Thunder Run”, the initial armoured thrust into Bagdhad up highway 8 and then back out to the airport though heavy oppposition the constraints didn’t allow the discrimination you infer are easy. The safety of the armourd column of some 60+ Abrams + additonal mechanized vehicals depended on keeping the column in motion so that Iraqi and Syrian infantry could not close. The enemy engagined repeatedly in the practice of feigning being wounded. This was done so that the column could pass. At which point the enemy could then rise up to attack with RPGs the vulnerable rear of the tanks and vehicles. There was not ability at distances of up to hundreds of meters to ascertain and distinquish between the truly hors de combat and those feigning it. That situation cause the commander (Perkins, if I recall) to order the modification of rules of engagment so that vehicles further down from the front of the column would “tap” downed soldiers in sight to insure they wouldn’t fire from the rear. I think this practice, strictly speaking, is contra Conventions, but is a prime example of how contravention can be reasonable required in response to enemy contravention.

    On your statement Abu Gharib was the best recruitment poster al-Qaeda ever had. That’s a cute sound bite, but I’ve never seen any numbers to back it up. Have you a shred of evidence that recruitment to al-Qaeda improved as a result of that or is just an unfounded assumption on your part?

  9. To my knowledge, al-Qaeda does not release recruitment figures. So I can’t give you the empirical evidence to back it up. But I’ve heard a fair bit of anecdotal bits buttressing the point as beyond a mere soundpoint. It certainly is analytically sound.

    Also, something just occurred to me. The bill in question (The Military Commissions Act) doesn’t to my knowledge say a word about RoE on the battlefield. I don’t doubt that Bush asserts the powers you want to give him (I’ve yet to hear of a single power vaguely related to fighting the WoT Bush does not believe he has), but I don’t think that this particular issue (the “a” issue, to use my previous comments’ taxanomy) is part of the bill I’m indicting. If that’s true (and I’m pretty sure it is), then there’s even less of a reason fro you not to be wailing as loud as I am about the horror of congress and the evils of this new legislation. It doesn’t do what you want it to do, and it does do what you agree is evil.

  10. Ed Darrell says:

    One of the stories in John Kennedy’s great book Profiles in Courage notes the opposition of Robert Taft to the execution of some of those convicted of war crimes at Nuremberg. Taft’s point was that the standards of the trials were below the standards of justice given to the most common criminal in the U.S. (in the 1940s!). It’s a worthy read, and I encourage you to look it up.

  11. Mark says:


    I’ll try to remember to look that up, what do you think of the trial of Eichmann in Hannah Arendt’s book.