Why The Bybee Memo Reads Like a One-Sided Brief: It Was (for the CIA)

One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession, even if its head sometimes has to pass an ideological litmus test. One would expect an advisory memo on a major issue like torture to at least present both sides. If the key to a major part of the argument is an expansive view of separation of powers that has in the past been championed by Justice Scalia but has been repeatedly rejected by the Supreme Court as a whole (or, if you prefer, never adopted), one would expect to see a caveat or two somewhere as to the operational realities. But, just like there is a chilling absence of morality, there's also this puzzling disconnect with the state of the law (as I've also noted elsewhere, the crim law types have similar complaints).

One plausible explanation for these mysteries appears now on the New York Times web site and will presumably be in tomorrow's paper, Aides Say Memo Backed Coercion for Qaeda Cases: the Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened:

The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.

It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency's efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.

The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.

Does the provision of this context mean that the attacks on Bybee have been unfair? No. Being asked to come up with justifications for the CIA's behavior might mean that he was in a much tougher spot than if he was just engaging in a theoretical exercise, but his moral and professional obligations — and the need to provide quality, balanced advice not a one-sided and ultimately unpersuasive screed — were every bit as strong if not stronger.

Furthermore, and perhaps because of this memo (the NYT does not claim direct causation), whatever happened to Abu Zubaydah was not unique:

It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.

Mr. Mohammed was “waterboarded” — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.

In the end, administration officials considered Mr. Zubaydah's interrogation an example of the successful use of harsh interrogation techniques.

Some things just are not legal, and you have to say so.

Some Background:

Update: Jack Balkin on the role of the government lawyer.

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27 Responses to Why The Bybee Memo Reads Like a One-Sided Brief: It Was (for the CIA)

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  4. Cecil Turner says:

    ISTM Professor Yoo has a valid complaint about much of the criticism being “political rather than legal.” If the point of the exercise is to determine what treatment is legal for [Al Qaeda] detainees, then the logical solution is to draw the line at the most extreme legal treatment. Anything less extreme would be permissible, anything more would not. It’s also important to point up conditions under which the line would move. (E.g., whether the President had constitutional authority to suspend treaties in the event they conflicted with war prosecution.) The Yoo memo in particular (complemented by the Bybee memo) made a credible attempt to highlight the limit–whether the Administration chose to approach it or not.

    If you accept Yoo’s contention that Afghanistan, as a failed state, is not a “High Contracting Party” for purposes of Geneva, then none of the Geneva provisons apply. In that case, the only applicable protection for detainees would be the Convention Against Torture. Bybee is convincing it requires extreme treatment to rise to the level of “torture” as defined in that document, and there’s little obviously wrong with the rest of the memo.

    I don’t believe a strict “failed state” test is appropriate to be applied to Geneva (particularly since warfare is likely to cause a state to fail the test before the end of hostilities). Moreover, it’s worth noting the President’s order of Feb. 7, 2002, though it discusses the concept in paragraph 1, doesn’t rely on it. In fact, it implies Geneva does apply to the Taliban, at the same time it denies POW status: “I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.”

    Extrapolating to the logical conclusion, the Administration position seems to be that the Taliban does not qualify for combatant (and thus POW) status under Third Geneva, but would benefit from similar provisions of Fourth Geneva. Al Qaeda is not protected by any provision of any of the Geneva conventions. That seems to me a very defensible position. And if Al Qaeda is only protected by the CAT, there is a wide range of allowable “coercive” interrogation that would otherwise be forbidden under Geneva. I’m not sure where that line should be drawn (and tend to agree Bybee drew it on the extreme side)–but water boards and stress positions clearly, IMO, don’t exceed it.

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  8. Barbara says:

    Cecil, I don’t know your background, but when the line is never or rarely clear, a lawyer should be hard pressed to act as if the line is clear, which is to say that the lawyer would normally warn someone that “A” is clearly not torture, that “C” is and that “B” is open to interpretation and one could not guarantee that having engaged in B, one would not be violating the law. Yes, an unsatisfying conclusion, but that’s when one tries to use judgment that would, presumably, make B off limits unless someone in authority adjudges that for a very particular threat (as in one individual case at a time) it’s okay to take the legal risk and commit B — which still would not guarantee that B is legal, only that there’s less likelihood of enforcement risk because it’s clearly not a “pattern” of conduct that is indiscriminately used. In most cases, however, one would steer well clear of B, and would never convey to men in the field, so to speak, that B is okay, but would draw the line at A, particularly when the torture convention is involved, because anything we do to *them* could be turned around and done to *our guys*, and if we don’t want that we must be judicious. I think it very telling that some of those being asked to commit B themselves raised the objections. Good for them.

    And the discussion about intent — sacre bleu! — those in the DOJ who actually prosecute crimes must cringe at the notion that an internal DOJ memo could be used as a road map to defend the criminally clueless — hey, if you shoot into a building that you know has someone in it but you don’t *intend* to hit anybody, are you guilty of some degree of murder? In most states you would be, although it wouldn’t likely be the highest level. “Intent” is frequently inferred from actions when no reasonable person could mistake the consequences or likely condequences of engaging in them — like, say, listening to someone scream and seeing that bruises and broken bones and psychosis are the result of your actions. If you “know” what’s happening, as in you’re sentient and not sleepwalking or insane, you usually have all the “intent” that the criminal law requires. “Intent” a la Ratzlaf is relevant only when there is nothing “mala in se” regarding your actions — nothing about them that would put you on notice that they are illegal unless you know exactly what the law provides, in the case of Ratzlaf, a complex tax law regarding the structuring of a transaction to evade taxes. But SCOTUS has decided subsequent cases that make it clear that Ratzlaf is an outlier — not the norm in any relevant sense where one’s conduct would normally be viewed as wrongful, even if one doesn’t know all the elements of the completed offense that one is committing. Notwithstanding the above, I think there can be complexity regarding torture, because an “acceptable” interrogation practice could have unforeseen consequences, that is, a weak individual may break down under normally acceptable interrogation practices, but that’s different from setting the threshold of injury so high that no normal person could escape the fact that they are quite likely to inflict grievous bodily harm. In any event, you’d get a much more nuanced memo than the one that was written if they were really interested in that question.

  9. Barbara says:

    Okay, Cecil, I apologize, I ranted at you and I didn’t mean to. My brain is turning to jelly, I didn’t address your points, and didn’t mean to. I just can’t believe the legal reasoning in those memos is so shoddy regarding the technical crim law. If they want to say that the conventions don’t apply then they can say that, but they seem to be trying to get the advantages of every possible position — we are humane, but we don’t have to be, and when we aren’t there’s no way we can be prosecuted. And none of this, I trust, would be an issue, if they hadn’t “expanded” the use of extreme interrogation measures. Anyway, withdrawing the CAT has serious repercussions for us, and I’m sure that’s why they’ve tried so hard to maintain that they adhered to it while trying to protect men in the field who were straying by saying that they didn’t have to. It’s a dangerous position and it’s deeply unsettling.

  10. Cecil Turner says:

    Barbara,

    No apology necessary, your points are well taken.

    “Notwithstanding the above, I think there can be complexity regarding torture, because an “acceptable” interrogation practice could have unforeseen consequences, that is, a weak individual may break down under normally acceptable interrogation practices, but that’s different from setting the threshold of injury so high that no normal person could escape the fact that they are quite likely to inflict grievous bodily harm.”

    I agree. I also think it’s worth remembering we’re talking about warfare and interrogating individual combatants (lawful or not) immediately after capture. These individuals are usually roughed up in the capture, have often been wounded, and are subject to immediate interrogation (as the information is extremely time-critical). It is not malum in se to interrogate that individual, nor to apply approved interrogation techniques in good faith. In at least one case, it’s been alleged the detainee had an undiagnosed condition, suffered a heart attack and died (and in at least one other, a similar claim has been made, but there’s evidence excessive force was used). If we are going to allow any sort of stressful treatment to persons of such varied physical condition, intent is critical.

    Many also lose sight of the difference between a memo and an order. Field personnel will not be given a nuanced look at torture statute provisions, but a detailed list of acceptable procedures (including approval requirements). The decision process (and evaluation of the possible consequences both for interrogators and captured US personnel) is a function of command. And since the military command is responsible both for the orders and enforcement, there’s less than the usual amount of uncertainty in the process. (Though the CIA process differs somewhat.) So far, the (public) approved measures parallel techniques for training high risk-of-capture service personnel. It’s difficult to see that as grossly inappropriate when questioning Al Qaeda personnel (and surely more appropriate than strict adherence to Geneva, which would forbid even “good cop/bad cop”). And frankly, there’s little room for treatment of friendlies by Al Qaeda to get worse.

  11. Kimberley says:

    “So far, the (public) approved measures parallel techniques for training high risk-of-capture service personnel. It’s difficult to see that as grossly inappropriate when questioning Al Qaeda personnel (and surely more appropriate than strict adherence to Geneva, which would forbid even “good cop/bad cop”).”

    Cecil Turner,
    Regarding the above, I don’t see where Geneva would prevent what you call “good cop/bad cop” interrogations. When done correctly, the interrogation style you’re referring to is a tandem psychological – not physical – assault on the protective mechanisms of a criminal’s infantile ego.

    There’s no need to physically harm the person being interroagted. In fact, it would be detrimental to the interrogation because it triggers a re-errection of the protective mechanisms that criminal minds use to justify their behaviour. So, “bad cop” keeps constant pressure on the suspect’s mind, to keep them off-kilter just enough to interrupt defense mechanisms. The point is not to be a threat to the suspect, but rather to disrupt the initialization of defense mechanisms. And “good cop” is the interrogator that pretends to identify with the suspect – thus teasing out ever-greater confidence and, eventually, an admission of direct knowledge about the crime.

    It’s more psychological “cat and mouse” than the nonsense you’ve seen on t.v. It’s a process of seduction. And I have not read any portion of any convention in the Geneva Accords that would preclude such an interrogation.

  12. Cecil Turner says:

    Kimberly,

    I’d read these three articles:

    Article 13: “Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”

    Article 14: “Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”

    Article 17: “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.”

    –especially the “may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind”–as a strict prohibition of any sort of negative treatment. Which to my mind would include a “tandem psychological assault,” even if the prisoner was never touched. (Though I’d also admit that’s a fairly narrow interpretation.)

  13. Eli Rabett says:

    Would some wonderful hairsplitter please tell me in what way the Taliban was not the legal government of Afghanistan. And since they were clearly so, as recognized by governments around the world (including, I believe, but am too lazy to check at the moment) the US, why were their soldiers not due the rights of combitants under the Geneva convention (to which I believe the US is a signatory, although again I am too lazy to check at the moment, which is perhaps not a good thing given recent evidence).

  14. Phill says:

    Some of the criticism of Yoo was certainly political, that does not make it wrong. It would only be wrong if a different criticism would have been made against Clinton, Gore or any other Democrat. Kind of like Scalia and Rehnquist deciding that ‘states rights’ mean what is convenient for Republicans regardless of whether it is consistent with their earlier claims.

    I have a very hard time believing that any of the Republicans in Congress being outraged out the outrage would have passed the opportunity to criticize Clinton on the same set of facts.

    In fact I have a hard time believing that the reptiles would have rallied arround a President Gore after 9/11 rather than taking every opportunity they could to make partisan points.

    Yoo claims to believe that the Geneva conventions don’t apply to exactly the case they were intended to apply to. He is deliberately disingenuous claiming that the law of the excluded middle does not apply, that laws pertaining to the conduct of war do not apply because the war is ‘over’ and simultaneously that because the ‘war on terror’ is not over that the requirement to release prisoners of war does not apply.

    The place for Yoo, Baybee and their ilk is in the dock of a war crimes court, right behind Cheney, Bush, Ashcroft, Rice and Powell.

  15. Ellen1910 says:

    Eli,

    Isn’t it the case that only Pakistan, Saudi Arabia, and the UAE recognized the Taliban? the remaining 188 United Nations members having withheld recognition for the sensible reason that the Taliban was merely one of a number of groups of thugs operating in Afganistan none of which had proved its right to rule the country.

  16. Cecil Turner says:

    “Would some wonderful hairsplitter please tell me in what way the Taliban was not the legal government of Afghanistan. And since they were clearly so, as recognized by governments around the world (including, I believe, but am too lazy to check at the moment) the US”

    Only Saudi Arabia, Pakistan, and the United Arab Emirates ever recognized the Taliban as the legitimate government of Afghanistan. The US certainly did not. In fact, as the National Commission on Terrorism reported in 2000, they weren’t added to the list of state sponsors of terrorism for precisely that reason: “The report notes the United States has not designated Afghanistan as a state sponsor of terrorism because it does not recognize the Taliban regime. Nevertheless, it recommends designating Afghanistan as state sponsor and imposing sanctions against the Kabul regime.” (The recommendation was rejected, again to avoid recognition of the Taliban.)
    http://news.findlaw.com/cnn/docs/crs/natlcomterr20601.pdf

    “why were their soldiers not due the rights of combitants under the Geneva convention (to which I believe the US is a signatory, although again I am too lazy to check at the moment, which is perhaps not a good thing given recent evidence).”

    Combatant status has certain requirements (listed in Third Geneva article 4), which IMO the Taliban don’t meet. (There’s discussion of both sides of the issue in the “‘Humane’ treatment” and “Yoo, unrepentant” threads–and Yoo covers it on page 25 of his memo.)

  17. radish says:

    How far we have fallen.

    I’m sorry Cecil, but unless I’m totally misunderstanding your position it either demands that I overlook some pretty serious fallacies or it fails on first principles. To begin with, the signatory status of Al Qaeda or any failed former HCP under the GCs is a red herring, because the GCs also describe and circumscribe the process by which an individual’s GC status is determined in theater, independent of future determination of affiliation, nationality, etc. The GCs do not protect organizations or states, they protect individuals.

    Worse, allowing one party to change the law during a dispute is inherently antithetical to rule of law in general (ironically one of the bedrock principles applied with such painstaking precision and gravitas in Bush v. Gore). You don’t think that’s what you’re doing? Think again. Shorn of partisan and ethical baggage, and retrieved from the rarefied heights of ‘moral necessity’ and ‘national security’ the argument winds up looking like this:

    “Yeronnor, my client Mr. Smith, owner of the property in question, cannot be fined for violating the zoning ordinances of Anytown by operating a public business out of a building previously zoned as residential. As you are aware, all of the actions prescribed in Anytown Zoning Regulations S.3 through S.5 regarding fines, remedies, appeals, deadlines etc are specific to the particular zone in which the property is determined with finality to be.

    “While it is true that only the two mutually exclusive zones R-1 and C-1 are actually mentioned in the AZR, I submit that my client’s property is quite clearly excluded from R-1 by the fact that [ insert reasonable explanation ] and from C-1 by the fact that [ insert reasonable explanation ]. It must therefore of another type which, with the court’s permission, we shall henceforth call M-3 for convenience. There being no procedures regarding properties zoned M-3, my client’s property must be exempt from all fines, remedies, appeals and deadlines.”

    Ha ha ha. Quite the sidesplitter when you look at it that way. Too bad lives are at stake.

    The position that an entity can be excluded from the coverage of a statute which distinguishes between categories merely with the assertion that its category is not described in said statute is nonsensical no matter how many brilliant scholars espouse it. The GCs are perfectly clear about what is required to determine status. And in terms of legal structure they are pretty much like zoning – they describe a finite number of categories and a finite but explicit set of rules regarding how individuals must be (not may be, but must be) determined to be in one category or another.

    Facile? Oversimplified? Rebut away… Or do you also think it’s a good idea to let people unilaterally exclude their own properties from existing ordinances?

  18. Kimberley says:

    Cecil Turner,
    As I said, I do not see that those articles preclude the form of interrogation you referred to. If you’ll pardon my saying so, partially quoting me doesn’t make your objection any more poignant. The full quote: “[T]andem psychological – not physical – assault on the protective mechanisms of a criminal’s infantile ego,” is essential to my point and also to whether or not it would violate Geneva.

    This interrogation style does not call for threats or abuse of any kind. And, as I stated earlier, those things are in fact detrimental to the interrogation because they stiffen psychological resistance to inquiry and create “tells” for suspects looking to figure out what it is interrogators want to hear.

    The reason this interrogation style is particularly effective is that the criminal mentality is an extremely rudimentary structure. Think along the lines of dealing with the mental complexity of a child – a dangerous child. The ability to negotiate “good” and “bad” signals coming from the same people is not something that criminals do well because they viscerally understand people in stark terms, they see others as “marks” or fellow predators to be avoided. The ‘bad cop’ role, then, isn’t defined by the behaviour of the interrogator – it’s projected onto them because they are the one making the suspect uncomfortable.

    Unpleasant stressors can be as simple as breaking a suspect’s psychological rhythm by narrowing the eyes unexpectedly, excusing yourself from the room momentarily at a moment when the suspect thinks he’s got your rapt attention, forcing a suspect to recount insignificant details over and over. These are the things that rattle nerves and keep suspects off balance enough to be uncomfortable, but not perceiving any specific threat.

    The “good cop” is only “good” to the criminal because, as the interrogation wears on, the suspect is not getting hard, unpleasant sensations from this interrogator. Because this interrogator is perceived as sympathetic, the suspect starts to see them as a “mark” to be conned. And that is the suspect’s first and most significant major miscalculation – he or she’s primed to make many, many more throughout the remainder of the interrogation.

    This is a dance, not a fight. You don’t break this suspect’s mind; you seduce it away from its natural defenses and into believing it’s still in control. And Geneva does not preclude it, not that I can see.

  19. Kimberley says:

    Mr. Turner,
    I wanted to add that I have no beef with you; if we disagree on the interpretation of what Geneva will allow or not – then so be it. I just think it’s very important to make sure we are talking about the same things when referring to interrogations like the one in question. That’s the only reason I make such a point of rehashing it here. I’ve been trying to find the books I have on successful interrogation techniques all day, to no avail – yet. They’re up in the attic somewhere; at least I thought they still were.

    My point is that the more I think about the “extraordinary interrogation techniques” that the CIA and MI have apparently been using to keep our nation secure with valuable intelligence – the more furious I get. It is no strange thing we’re caught behind the eightball here. Our “intelligence” is a direct reflection of the techniques (read: staggering incompetence) that was used to extract it, it seems. The reference books I have on interrogating suspects weren’t for your benefit – or even to refresh my own memory. I was going to FedEx the lot of them to Langley.

    Is that presumptuous and rude? Yes. Could they use a reminder to get back to reliable basics anyway – yes, absolutely, without question – before we’re facing more disastrous consequences than losing America’s reputation for our competence and integrity.

  20. raj says:

    >>One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession….

    Um, who told you this?

    I have been involved in drafting legal opinions, and will clue you, clients typically are looking for one (or possibly both) of two types of opinions. On type of opinion is essentially “I have a number of scenarious that I might wish to pursue, but which of those scenarios are legal”? Another type of opinion is “I have a scenario that I wish to pursue, give me an opinion that that scenario is legal.” The latter, of course, so that, if it is discovered that the second scenario is being pursued, the lawyers can be blamed. But who cares, since lawyers are already held in low regard among the public. It is quite apparent that the “legal” memoranda involved in the case are of the latter sort.

    BTW, your contention that the OLC is drawn from the “elite” of the “profession” is a bit amusing. Harvard and Yale might want you to believe that their graduates are “elite,” but, give me a break.

  21. Cecil Turner says:

    Radish,

    “The position that an entity can be excluded from the coverage of a statute which distinguishes between categories merely with the assertion that its category is not described in said statute is nonsensical no matter how many brilliant scholars espouse it.”

    Interesting position. But it’s a treaty, not a statute, with necessarily less precise phrasing. And there’s ample precedent for treating those who don’t fit into combatant categories as unlawful combatants–and not entitled to POW status.

    Quirin is probably most direct:
    “By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

  22. Cecil Turner says:

    Kimberly,

    I also have no beef with you (in fact, I find your posts very courteous).

    I admit to being a bit tendentious with the “good cop/bad cop” analogy, but still believe a strict interpretation of “may not be . . . exposed to unpleasant or disadvantageous treatment of any kind” would forbid even that. My point is that appropriate treatment during interrogation of persons involved in international terrorism who refuse to answer questions probably should involve grabbing, fingers in the chest, withholding preferred foodstuffs–and conversely, more freedom, choice meals and other special privileges for cooperation. And except for a couple of the measures that were reportedly approved and then withdrawn (dogs, in particular), the guidelines don’t appear terribly extreme. And it’s worth noting these were the most extreme measures, many of which were reportedly never used. I’d also suggest we know relatively little about actual CIA/MI interrogations and results.

    Many appear to be conflating Al Qaeda interrogation procedures with the obviously home-grown measures shown in the Abu Ghraib photos. And obviously these were amateurish, counterproductive, and appalling. (And according to Professor Philip Zimbardo, would make a good follow-on study to the famous Stanford Prison Experiment.)
    http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/05/08/MNGN76IG761.DTL

  23. Kimberley says:

    Cecil Turner,
    You’re right to note that these suspects in particular would be resistant to interrogation. In fact, it used to be taken for granted that genuine operators in terrorist organizations (anyone with truly valuable intelligence) were specifically trained to hold up during intense, abusive interrogation techniques. They only have to withstand it long enough for free operators to change the organization’s tack. After about twenty-four hours or so, the intelligence that any captive agent has becomes moot. So, not only are these men trained to withstand harsh treatment at the hands of interrogators, it doesn’t even serve a useful purpose to beat or humiliate information out of them after the first twenty-four to forty-eight hours has passed – even if they are al Quada.

    I don’t know what in the world the CIA/MI is thinking they’ll achieve with their enormous Abu Ghraib-esque discredits to intelligence gathering (to say nothing of our national prestige). It so contradicts custom, experience and instinct that it literally baffles the mind. We are at an extreme disadvantage as long as they’re out there creating legions of enemies and getting zero effective intelligence in return, that much is (and always should have been) completely obvious.

    Honestly, witnessing this level of systemic incompetence at the very nerve center of America’s defensive establishment makes me, for the first and only time since 9/11, fearful for this nation. It appears we are no longer institutionally fit to manage this challenge and that could take a decade to fix, bugger it all. One then has to wonder what in hell is getting through the screen while these daft bunglers play out their bizarre Brando fantasies from ‘Apocalypse Now’ with our national security. Bad news, very, very bad news…

    In any event, we are in agreement here. I’ll take a look at the article you recommended. Take care.

  24. radish says:

    But it’s a treaty, not a statute

    Treaty or statutes or “body of law” the GCs are the “Supreme Law of the Land.”

    And precise or not, they do describe (1) a finite set of categories, (2) constraints on the handling of individuals within each of the categories, and (3) explicit procedures for both interim and final categorization of any individuals to which the constraints mentioned above might possibly apply.

    I take it as given that not everyone qualifies as a POW. I can also imagine plausible (if hairsplitting) arguments that nobody in Afghanistan qualified for POW status. I disagree with that but at least it has a leg to stand on. I can even imagine plausible (if hairsplitting) arguments that US forces in Afghanistan were not bound by the GCs period. I personally find that idea disturbingly amoral and contrary to the view of the United States as a fundamentally just nation, but it wouldn’t fly in the face of reason.

    What is (to my mind) incontrovertible that when the GCs are in effect at all, it is not possible to legally assert that an individual lacks any GC status whatsoever. Certainly individuals may be excluded from this protection or that, but not from all protections. This is why I was wondering whether I misinterpreted your position as being like that of the memos. The memos seem to suggest an interpretation of the GCs which permits the GCs to be technically in effect but not universally applicable. Huh? You cannot exclude individual X by asserting that they are “none of the above” because the conventions address what to do with none of the aboves while you are determining their status (and AFAIK Quirin does not negate this). Likewise you cannot exclude individual X by asserting that they are category Y (not found in the conventions) because there are conventions which specify the mechanism by which individual X must be (not may be, must be) categorized.

    Quirin doesn’t help. Individual X may well have engaged in actions which render their belligerency unlawful and exclude them from POW status, but not only does this not leave them unprotected, invoking Quirin suggests that their status (as an unlawful combatant) has been in fact been determined with finality in anticipation of a military tribunal. Where are all the GC status hearings taking place, if you don’t mind my asking?

    P.S. I admit there may actually be some precedent regarding exclusion of unlawful combatants from any protection whatsoever, but I can’t be bothered to look for it, and I submit that it would “extralegal” even if binding…

    —–

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