It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

Sorry, this is just plain silly. Due process and habeas corpus has never applied to combatants, and the mere suggestion it should is risible. Can you imagine the WWII case where the German Soldier’s mother shows up at a federal court petitioning for release: “Please let Heinrich go, he’s not a real Nazi, his Hitler Youth friends talked him into it”? Of course not. We detain combatants for the duration of the conflict, for our own protection. Because if we don’t, they tend to kill our citizens (usually the ones in uniform).

Similarly, most of the hand-wringing on this subject displays a stunning depth of ignorance on military matters and the law of war. The Geneva Conventions have very strict standards of treatment for enemy prisoners, protecting them from any sorts of abuse or insult, and paying them for their detention. But in order to qualify, the combatants have to be legal (i.e., follow the rules of war). Those that don’t, don’t get the protections of being a combatant. Nor should they. There’s a good reason for this: it incentivizes other belligerents to follow the laws of war (so our own civilian populace doesn’t have to worry about being the target of an attack, and our soldiers don’t have to worry about being tortured, etc.).

Lawful combatants are entitled to strict hands-off treatment:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

Unlawful combatants are only protected by the Convention Against Torture (and may be punished for the law of war violations that make their belligerency unlawful). They don’t suddenly get a bunch of due process rights (e.g., habeas corpus, jury trial), just because they decided to flout the laws of war.

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“And no convictions are likely to come, since this administration likes to shield itself behind executive privilege, national security and a plethora of other dubiously legal obstructive tactics.”

If you think a democrat administration won’t do the same thing, I’ve got some land I’d like to sell you. . . .

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I agree with you, in part.

Greenwald should have said “alleged war crimes”, since there are no convictions.

And no convictions are likely to come, since this administration likes to shield itself behind executive privilege, national security and a plethora of other dubiously legal obstructive tactics.

Worse still, our government has already admitted to using a technique for which Japanese soldiers were hanged following World War II, but has again shielded itself from prosecution. One can reasonably predict that any attempt to hold higher-ups accountable for this would be met with the dual-pronged defense: “we didn’t really mean what we are on record for admitting,” and, “you cannot have access to any probative nor exculpatory evidence due to national security concerns.”

It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

This is all good and well, if you are willing to admit that all things being equal, in the end might is right and to hell with the rule of law and the founding principals of this nation.

Being a true patriot means accepting that even the most depraved, guilty, bloodthirsty and vile individuals are allowed their day in court and that if the state cannot prove guilt, they may walk free. It also means that we do not stoop to the level of a Turkish prison or Japanese POW camp in the name of democracy or freedom — democracy and freedom are meaningless in a society which sheds the rule of law in the name of its own security.

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I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment . . .

Well, I’d note that the military leadership fouled up Abu Ghraib (specifically, BG Karpinski telling her supervisors to “stay out of the towers” at the holding facility).

On the NSA Director thing, that isn’t what he said. Here’s a typical liberal site bemoaning Hayden’s “ignorance” and adjudicating between the two claims in the interview:

Landay: “the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.”

Hayden: “The constitutional standard is “reasonable.” …I am convinced that we are lawful because what it is we’re doing is reasonable.”

Of course, Hayden is right and Landay is wrong. A clear reading of the Fourth Amendment should’ve clued in the excitable types:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nowhere in there is a requirement for probable cause for a search, but only for a warrant. And the idea that a warrant is required for every search is of course incorrect. Pat-down frisks, inspections at border crossings, and searches pursuant to an arrest are common examples of searches that don’t require a warrant . . . because they are reasonable. And the AP, et al, refused to take up the torch on that particular issue because it was demonstrably wrong.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

You can quit and fail the course . . . just about nobody does. And the physical act is precisely the same . . . so is the difference enough to go from training to torture? I find that a bit hard to feature.

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Cecil Turner wrote:

But I still think nothing in the interrogation techniques could reasonably be construed as torture. Waterboarding? Hardly. When we do it to our own troops at SERE School, we call it “training.”

First, thanks for the info and the pointer to the Medillin case; I’ll read up on that when I get the chance.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

My point is simple – we need clear, bright lines on this question, as well as clear oversight. We may have the former, in the form of the DTA, but we most certainly do not have the latter.

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MataHarley wrote:

On the other hand, they’re trying to call long interrogation times, loud music and sleep deprivation – torture. Get serious…

Oh, I’m with you on this one. My problem is that there is no ongoing oversight, there seem to different rules for military/CIA/civilian-contractors, and we know–in graphic detail–what happens in the absence of bright lines and oversight.

I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment, a Director of National Intelligence who says that we simply cannot execute surveillance programs without telecom immunity (when existing case law and precedent clearly provide immunity for LEGAL surveillance requests), an Attorney General who states that the courts can’t deal with classified material (when there is a huge body of work that clearly shows that courts can, and do, deal with classified material on a routine basis), and the like.

I simply can’t take “trust us – we’re doing it right” any longer.

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Missy,

I know what you mean. I never read Saar’s book but “cleansing” of the ACUs (removing all tabs, name tapes, patches) is simple and strangly enough, they provided pockets with more then enough room for even a 1st Cav patch to fit in. The medic I talked to stated no issues like that, just a lot of spitting and other antics by the prisoners. She also stated that the prisoners taken by Iraqis and given to US Forces were happy to be in our care.

I was at Riley years ago. Lived on Hubner Rd in the “Flag House” next to Stone Court by the buffalo pens. Nice place, but my poor wife was allergic to everything there.

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ChrisG,

I read about half of Erik Saar’s “Inside the Wire” before my nephew came back and mentioned the book to him. He was familiar with Saar because of articles he read, we agreed that Saar was quite the little drama prince.

One incident I described to him from the book was how Saar had said they had to duct tape their name tags so the prisoners wouldn’t see their names. My nephew said, “Aunt M, remember the velcro?” I had helped him with his badges one morning when I visited him at Ft. Riley. He said, “we don’t do duct tape, we just pull it off and put it in our pocket.”

Such little things can reveal a lot.

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Missy,

When I returned from Iraq last year, I spoke with one of the Soldiers who was a madic charged with treating the detainees. She backs up your nephew’s story. The “detainees” were abusive and violent while there was almost nothing that our Soldiers could do to them aside from defending themselves.

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My nephew returned from Iraq in October, spent the last half of his duty at abu Gharibe and occasionally worked at another prison, I don’t remember the name of it.

He brought the detainees in to be interrogated and sat in on the interrogations. He said the interrogaters were not allowed to touch the detainees and they are not being abused.

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