Perhaps it's just me . . .

but do you get the sense that the United States is in the process of destroying all the good will and moral leadership its has earned in the international community over the past sixty-five years? At the outset of the war crimes trials at Nuremberg, Justice Robert Jackson, the chief U.S. prosecutor, made an eloquent and remarkable statement: "That four great nations, flushed with victory and stung with injury, stay the hands of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to Reason." Think how far we have shrunk from that aspiration. With secret detention camps, blatant violations of international human rights, administration demands for the authority to use torture, efforts to deny detainees even the most elementary rights of due process and fair proceedings, our government has sunk to a level of immorality we never even contemplated in the Civil War, World War I, or World War II. Don't we, as lawyers, have a professional and ethical obligation to say something? Don't we have a responsibility to demand that our government respect our most fundamental values of procedural fairness, rule of law, and human decency. Is it acceptable for us to live silently through a period in which our government disregards Reason in order to pay tribute to Power? Perhaps it's just me. . . .

Comments

[Joe]

Honestly, I think it is just you. To arrive at that sense you allude to, you have to ignore the realities of what happened during the Civil War, World War 1, and World War 2. I'm not sure if it's out of historical ignorance or what, but nothing we're doing today in the War on Terror remotely compares to the horrors we and other countries unleashed on each other in those three wars.

[saldo]

Joe, I assume you just forgot to back up your accusation of historical ignorance with facts, right? Right?

[John]

Professor Stone, it is not just you. Almost half the country, including me, shares your sentiments, but we feel a sense of futility, in that there was a democratic referendum on this President and his policies in 2004, and they won. Groups have been formed and galvanized against this erosion of our good-faith claim to moral leadership, but those groups have had seemingly little practical effect. Is it that we need to continue to write letters to the editor and our representatives, put the right bumper stickers on our cars, or blog our outrage on web sites like these? Is there an effective way for the minority to register opposition?

[none]

I agree with the professor's sentiments, but I also agree with Joe: Stone's comments reveal (much?) naivete.

As for facts . . . well, I don't think President Lincoln was real big on individual freedoms during the Civil War. And President Truman did order the annihilation of two Japanese cities, non-combatants and all (where was the due process there?). And before that (under that moral lion FDR), fire-bombing cities was SOP.

The list goes on.

And Stone's allusion to the Nuremberg Trials . . . well, what's the situation with Saddam Husseing right now? A trial with process and defendant rights, et cetera.

There's also some linguistic or epistemological problems here: just how secret is a "secret detention camp" that we are talking and writing about in some detail?

And what about a weird moral dilemma: Was it moral or immoral to leak the existence of what were supposed to be secret detention camps? If a "liberal" newspaper spreads state secrets, is that proliferation moral or immoral?

Or another dilemma: Is it moral or immoral for the richest and most powerful country in the world to allow authoritarian regimes to commit genocide and other heinous crimes against individuals?

Is it possible that, in some grand liberal utilitarian calculus, this administration, with all its short-comings, is actually, by virtue of its efforts to free 27 million people from cruel oppression (whether the effort is possible or not), is actually more moral than any other administration in U.S. history? (If so, what does that say about morality?)

As I've said before, I'm no fan of the current administration. Whether the Iraq war and occupation was justified or not, this administration bungled the operation.

But pining for the good old days, when America was virtuous and good, is silly. (It also sounds very . . . conservative.)

And the Reason versus Power dichotomy, what the hell is that? It's empty rhetoric.

Authoritorian regimes are not, ipso facto, irrational. They are every bit as rational as wildly democratic regimes.

In fact, there is a good argument that democracies, with their demogoguery and passion-filled public opinion, are less rational than, say, a cold-blooded authoritarian regime, be it benevolent or wicked or in between. (See Plato's Republic, advocating an undemocratic political arrangement as the epitome of justice, and argued on highly rational grounds.)

(Maybe the proper dichotomy is between Reason and Passion, but where does that get us?)

My conclusion: Stone's conclusions are founded on an idealistic reading of our history and an oversimplification of the designations "moral" and "immoral."

[Fred]

It is just you. I am sure you also know the history, you just seem to forget it because you want to feel as though Bush is the delivered son of Satan.

I am not going to go through some detailed historical account. I think it is sufficient to say that the CIA used to be assasination Inc. Two memorable but characterstic actions were the execution of Che Guerva and Kennedy's Bay of Pigs order. Kennedy ordered the invasion and overthrow of Castro!!! Think about that. Imagine if Bush ordered that. What would your reaction be?

Give me a break Professor Stone. You are trying to convince me that the CIA didn't have secret prisons during WWII? Are you trying to tell me that international law was not violated during an invasion of Cuba?! Or an arms sale to Iran in the 1980s? Do you honestly believe that the CIA used to only assasinate people - not torture them?

You are honestly out of your mind. Go read one of the many books out there written by an ex-CIA man that details various actions sanctioned by the Government.

I am really shocked that you are so disconnected from reality to think that torture by the Americans was invented by George W. Bush and Dick Cheney.

[Fred]

I should add, as far as your due process concerns go Professor Stone . . .Korematsu?

Hello? You're another angry liberal who thinks George W. Bush is unique in his disregard for law and reason - assuming, for the sake of this post, that he even does disregard those things.

[Geoffrey Stone]

These are good criticisms. I intended to provoke some response, so that's good. I certainly agree that in the Civil War, World War I, and World War II the United States engaged in regrettable conduct. Lincoln's suspensions of habeas corpus were of questionable legality, Wilson's prosecutions of war dissenters were wildly excessive, and Roosevelt's incarceration of almost 120,000 Americans of Japanese ancestry was immoral. Indeed, my recent book, Perilous Times, is all about these episodes.

On the other hand, as bad as those acts were, I think the actions of the current administration are worse, particularly in terms of the criterion I stated -- American leadership in the world as a voice for human rights and indidual liberties.

This is so for several reasons. First, as much as I deplore some of our past wartime excesses, they were not unlawful under then existing law. (The closest to this was Lincoln's suspensions of habeas corpus). Certainly, at the time of Wilson's and FDR's actions, then-prevailing law did not condemn their policies. In the current situation, I believe many of the current administration's act are in direct defiance of American law, including constitutional law, and international law, including the Geneva Convention. The rule of law does make a difference.

Second, as much as I might condemn some of our actions in the Civil War, World War I, and World War II, in important respects they do not seem to be as profoundly immoral as at least two aspects of current American pollicy -- the legitimation of the use of torture and the assertion of absolute executive authority to detain an American citizen on American soil and to hold him secretly, incommunicado, with no access to a lawyer or to judicial review, merely on the determination of someone in the executive branch that the individual is something called an "enemy combatant." That, in my view, is a "gestapo-like" tactic, plain and simple. It goes wildly beyond anything any other American president has ever done or claimed the power to do. It is the power to make someone simply disappear.

Finally, we did not become a world leader in setting standards for human rights and international morality until after World War II and Jackson's comment at Nuremberg. It is particularly this role that our government has tarnished, and it is tragic that it has done so. By its actions, this administration has legitimated an anything goes attitude throughout the world, an attitude we have rightly opposed since 1945.

[cfw]

Granted, the US has a history of war crimes, as does most every country that has gone through wars. We might add My Lai.

Still, when, in a static war, losing a few men per week, have we ever argued for rights to abuse prisoners? When have we ever tried to institutionalize such a policy?

No historical precedent for the torture meomos of John Yoo comes to mind. Never have I heard of the US trying to run CIA facilities abroad for abusive interrogations by foreigners.

The whole idea of "one world, one law" has gone out the window, with no lip service at all from Bush and his lawyers. In fact, Bush has promoted and encouraged lawyers to find loopholes and "work arounds" to secretly do what military and international law seems to obviously forbid.

How can the GOP go on and on about "well, we do not behead" when it crushes legs and suffocates in the process of abusive interrogation? This finds no precedent in any CIA (or OSS) work in WWII that I ever heard of.

The abuse in questioning, called for by Cheney, indicates a lack of emotional balance. Nuclear bombing by Truman had some semblance of balance, given the results at Iwo Jima and Okinawa, and prospects of 1 mm US dead assaulting the main islands of Japan.

The emotional balance for the Cheney view here is a supposed threat of nuclear terror bombs in NYC and/or DC, I suppose. But the Cheny rationale seems way too thin. It is a threat faced, to some degree, by all countries, yes? But Cheney does not propose that all countries should allow and use abusive interrogation, true?

Abusive interrogation fails to fit with the Kantian "golden rule" approach - we would not tolerate such conduct directed at our soldiers or civilians, even if we were on the verge of attacking, say, Iran with WP and tons of HE. So how is it ok (ethical, reasonable) for the US to use abusive interrogation?

Is it simply because we have might (and US citizenship) that we can do what others cannot, in Chaney's world view?

From an educational and career-development perspective, we need to make sure folks like Addigton, Yoo, Libby and Cheney spend a few years overseas and in the military before they presume to pontificate about the benefits of abusive interrogation, efficacies of CIA prisons overseas, military tribunals, etc.

I do not doubt their good faith, generally, but they seem wooden-headed, parochial, lacking ethics, and insensitive to history.

[doughoffer]

A number of the earlier posts articulated my thoughts on the historical ignorance of your comments, intentional or otherwise. Another thought is on our country's moral leadership. Do you really think that we are treating detainees less ethically than other nations would? Does this not ignore evidence to the contrary? The way England has treated suspected I.R.A. terrorists is the first, but not only, example that comes to mind. One might reasonably assert that it is difficult to find a nation that can reasonably condemn us for the treatment of suspected terrorists, based on their own actions in similar situations. I know your argument is that as the moral leader of the world, we should be held to a higher standard. I think the weight of the evidence shows that we are in fact living up to that standard.

As for the rule of law, I think it is perfectly legitimate to argue that the detainees in question do not qualify for Geneva Convention protections. Those who choose not to fight conventionally, and who target innocent civillians should not receive the same protections as those who do.

My disagreements notwithstanding, I still think this a valuable topic for discussion.

[JSFM]

What Professor Stone argues for is leadership, not uniqueness of our position. Assertions that our actions are legitimate because others do it are not only logical fallacies, they also do not address his point. If we are to be a city on a hill, how much weight does a pragmatism argument hold? The Professor asks, "Don't we have a responsibility to demand that our government respect our most fundamental values of procedural fairness, rule of law, and human decency[?]"; claiming that we have never done so does not mitigate these worries, even were such claims true. We hold an ideal of ourselves to be true, and we do not match it with our actions--one or the other must fail, and, like Professor Stone, I would prefer that it be a policy of uncompromised power rather than our capacity for moral leadership.

[Joe]

I never made the assertion that Dr. Stone was historically ignorant; I merely said that I wasn't sure of the reason for his failure to recognize the fact that the US, as well as other nations, have done things far worse than and not even comparable to what is happening today, and that one reason could be historical ignorance. Stone later clarified that he was primarily concerned about the US's moral leadership since becoming a world power after World War II, and there is where he may have a legitimate point if he is to accept the premise that we SHOULD be and ARE the moral leader of the world. People have different conclusions on that, but if you are of the belief that the United States should be the flag bearer of moral leadership in the world because we are also the most powerful, militarily and economically, then Stone's comments resonate. I am also concerned because I believe that if we're going to promote democracy in the Middle East and elsewhere, we do, in fact, have to conform to the ideals we're promoting. Nonetheless, I do believe we're doing a fine job living up to those standards, despite our shortcomings.

But to say that what we're doing now is worse than what we and many other nations have done in the past is simply incorrect by any standard and assertions in that manner simply come off as ill-thought-out attempt to bash the Bush administration rather than make an honest argument.

[none]

First, the pragmatic or utilitarian approach to torture doesn't necessarily approve of its use. It only does so when the hypothetical leads it there, or when the notion that there are benefits to a no-torture policy is denied.

Second, as Stone focuses his argument towards the torture issue, the rule of law, and setting a standard, I tend to agree with him more. (But his argument remains vague, at best.)

Third, regarding the following: "Still, when, in a static war, losing a few men per week, have we ever argued for rights to abuse prisoners? When have we ever tried to institutionalize such a policy?"

Revealing. The Bush Administration is "arguing" for its preferred policy and trying to "institutionalize" it. Not exactly the actions of a tyrannical regime. Very . . . democratic.

Moreover, the question of honesty cannot be avoided. Would it be better if the Bush Administration, publicly, argued against the use of torture, said it is deplorable, and banned U.S. agents from using, and, then, privately, allowed certain agencies to use torture, or allowed prisoners to be handed over to the Jordanian for a couple of brutal hours?

Fourth, I do think America should strive to set a standard for the rest of the world, however naive that effort may be. This whole idea, though, of setting such a standard is subject to many different formulations.

Should we, on the advice of Pat Buchanan, retreat from the international scene, seal are borders, strengthen the domestic situation, uphold the rule of law, ban torture, et cetera, and say to the rest of the world: Here's the standard; here's what you should do. Good luck.

Or does setting such a standard involve more than being the City Upon A Hill? Might it necessitate messy (and moralistic) business like Iraq and Afghanistan?

[doughoffer]

My point is not to say "others do it, therefore it is okay." This would indeed be fallacious.

My point is that in order to truly evaluate how we our doing in terms of moral leadership, we must compare our actions against our past actions, as well as the past and present day actions of other countries. To do so would be to make a more concrete, and fairer comparison.

[Akaor]

The anti-American Left always believes that their inability to see good in anything America does is somehow a virtue.

Professor Stone's hysteria is identical to the Left's wailing during the Reagan years. Remember the Nuclear Freeze Movement? What a great idea.

[David Palmeter]

Regarding Prof. Stone's remarks, I couldn't agree more. Though not directly on point, the remarks of my former evidence and labor law professor, and Nuremberg prosecutor, Bernie Meltzer, seem relevant, at least tangentially:

"The French and the Russians had at first objected to the whole concept of crimes against the peace, the French urging the familiar ex post facto objection and the Russians seeking to condemn such crimes only when committed by the Axis countries. But those Allies gave ground when Jackson made it clear that the criminalizing of, and the imposition of individual punishment for, aggressive wars, now and in the future, were so important to the U.S. that if the Charter failed to do so, the U.S. was prepared to abandon a joint trial."

Looks like Jackson might have been wrong about our interest "in the future."

[cfw]

None:

Third, regarding the following: "Still, when, in a static war, losing a few men per week, have we ever argued for rights to abuse prisoners? When have we ever tried to institutionalize such a policy?"

Revealing. The Bush Administration is "arguing" for its preferred policy and trying to "institutionalize" it. Not exactly the actions of a tyrannical regime. Very . . . democratic.

I give Cheney credit for meeting privately with a few Republican Senators, though I would have a hard time calling it a particularly democratic process. No one has yet tried to make the case for abusive interrogation in open court or with specific legislation.

I would not consider having the CIA spend say $41 billion per year running clandestine facilities (along with its other activities) particularly democratic. "Tyrannical" seems a bit too strong. I would say Bush and Chaney have been, about this subject, too light in the ethics area, wrong-headed, parochial, impractical, and shallow from a historical perspective.

Is it not better now to have the McCain law for all agencies, to shut down the foreign facilities, and to move on? Does the McCain law tie the hands of Bush too completely? No, Bush still has pardon power for those deserving pardon. Also, the McCain law says nothing directly about rendition.

[JCB]

Akaor writes: "The anti-American Left always believes that their inability to see good in anything America does is somehow a virtue.

Professor Stone's hysteria is identical to the Left's wailing during the Reagan years. Remember the Nuclear Freeze Movement? What a great idea."

First, I question how a comment like this is at all productive. Name-calling in lieu of an argument fails (or at the least *should fail*) to convince.

Second, this response seems to concede Professor Stone's point--unless your point is meant to be that governmental failures should be overlooked, and that blind patriotism is somehow advisable? I say "blind patriotism," of course, because it seems obvious that criticism, intended to make something better, is itself patriotic and supports these American principles that you complain it opposes.

Assuming for the sake of argument that we're seeing illegal and immoral governmental maneuvers (a point with which I am inclined to agree), lawyers would seem to have an exceptionally strong duty to speak up. Perhaps I'm just jaded and have no faith in the democratic process--but I suspect that most people will not be heard, even if they are rightly outraged. But if these actions are not only morally but legally "wrong," someone should be held accountable. Other than through the courts, the independent judiciary, how is this going to happen?

[not my real name]

It seems many of the comments come from Americans, although of course they may not.

Can I say, coming from Australia, one of your steadfast allies in the war in Iraq (not that anyone outside Australia knows), when we see George Bush get up and say that 'democracies don't fight each other' or 'we are freeing the world from tyranny', or other such twaddle, we think, gee, those Americans must be SO dumb to vote for that guy.

I am not saying anyone here is dumb or otherwise, especially if you voted GOP. You have your reasons. I can understand them. However, if America wants to behave as it is, it has no claim whatsoever to any moral leadership. Addressing the criticism of Prof Stone that 'Bush and Cheney didn't invent torture', well, sucks to be you guys.

The fact that you have a proud history of assassination, torture, secret prisons etc, means that you will get no goodwill from me. I am, seemingly, in a minority in Australia at least. We are right into locking people up, giving them no rights and keeping the baying population fed with Muslim terrorist arrests. However, from what I read in the blogosphere, especially in Australia, there are plenty of people who think that any American who believes GWB when he makes claims to moral leadership are either (1) stupid (2) wilfully ignorant or (3) crazy.

Sorry, but that's the way it is.

[none]

One of the difficulties with all of this is the weird relationship between agencies mandated to do secret work and a democratic system of government. Also, the use of "classifying" documents is awkward for democracy.

So when cfw suggested that I was wrong to label this whole argument as "democratic" he/she was correct. There are part of it that aren't democratic.

Those parts are much of the subject matter: the secret stuff that goes on at the CIA, FBI, NSA, et cetera and the whole system of classifying information -- none of that is very democratic. But we've decided (in a relatively democratic way) to create these agencies and systems.

And now we are arguing about them, about their merits, about the image they present.

[George Liebmann]

Given the nature of the audience to which Professor Stone's observations are addressed, I am a bit stunned by the tone of some of the responses, whatever one's agreement or disagreement with them. They are evidence of a serious debasement of discourse. Putting labels on people is an exhortation not to listen to or address their ideas, particularly unsuitable in an academic discussion, even an informal one.

Having said that, I will say that I share much or Prof. Stone's alarm, though I agree that there is some lack of historical perspective, particularly as respects World War I. What happened in the United States with respect to persecution of domestic dissenters during World War I, with the full acquiescence and encouragement of President Wilson and his designated inciter of war fever, George Creel, was far worse than anything before or since. There were state and local committees of public safety,the statutory authorizations for which survive in some states, suppressions of newspapers and of the teaching of German, etc. Robert Nisbet has written eloquently on this theme. In fact, the United States in 1917-18 had the political and economic institutions of a dictatorship. Prohibition of alcohol was imposed by decree as a 'war measure' in advance of the 18th amendment and Volstead Act, the railroads were summarily nationalized, a war production board exercised sweeping economic authority, etc. None of this history is mentioned in law school casebooks, including that of Prof.Stone. Compared to Wilson's rhetoric once he was persuaded to enter the war, that of Bush has been relatively restrained. On the other hand, the record in WWII was much better, thanks largely to Jackson and Biddle. As for the Civil War, the illegal detentions in Maryland and elsewhere were a major issue in the 1862 congressional elections, in which Lincoln's party lost seats. Contrast the pusillanimity of Kerry and Clinton on this issue. (Just how unjustified some of the detentions were may be gleaned from the chapter on George William Brown, the civil war Mayor of Baltimore, in my Six Lost Leaders (Lexington Books, 2001)).

There is no doubt, however, that our legal profession has not performed well in recent events. One of the unappreciated reasons for this is that large segments of it have discredited themselves as apologists for judicial activism. Those who pretend that 'abortion rights' and 'gay rights' are "fundamental rights" are rather naturally charged with crying wolf when the beast itself actually appears. As the recent House of Commons vote on terrorism legislation reveals, the prestige of British lawyers and judges is higher than that of ours; they are actually believed when they caution that important principles are now at stake. They have not expended their credit on the promotion and protection of upper-Bohemian life styles, taking the view that the protection of procedural values is the unique and only proper function of the bench and bar.

The ACLU's ongoing attack on Congressman Lindsay Graham's service in the military reserves on the basis of the 'incompatibility clause' provides a spectacular illustration of the sort of thing that has discredited the liberals. Graham is virtually the only member of congress who has addressed these problems with both political courage and detached intelligence.It would once have been thought axiomatic that service in the militia was not an office of profit, but a duty of citizenship. If the British had shared the ACLU's notion of incompatibility, the MP Sir Roger Keyes, a retired naval admiral who appeared in the House of Commons in full dress uniform ewould not have been able to make one of the speeches that brought down the Chamberlain government.

I also do not think that it is useful to declaim about America's 'moral leadership'. We are a nation among nations, not a nation capable of imposing our standards on the world. We are a superpower, as we are now learning, only until we get into a war requiring large numbers of infantry. Among the strongest arguments against the administration's unilateralism are those based on realism, reciprocity, and prudence. Professor Stone, and other overenthusiasts for international standards not clearly adopted into American domestic law, are open to the charge that they seek to substitute one brand of imperialism for another. The critics of administration policy would have more influence if, like Sen. Graham, they focussed their attention on clear transgression of ratified treaties and the Code of Military Justice adopted by Congress.

[JSFM]

Respectfully, Mr. Liebmann, Professor Stone argues for leadership, not imposition of values. The difference could not be more pronounced. We are not "overenthusiasts for international standards"--rather, we are believers in our own.

[Alex]

There seems to be a strange sort of dichotomy here between two groups of people who are so blinded with contempt for each other that they seem led to moral idiocy.

No, torture is not okay, and the executive should be ashamed of itself for attempting to run roughshod over habeas corpus because it feels it can't trust the courts to do their job (I'm less concerned about overseas prisoners from a legal point of view at least -- though morally it's a more complicated argument).

And no, President Bush is not laughable when he speaks of fighting tyranny and spreading freedom, unless you are already so warped that you care more about the man than about his ideas or policies. How can a morally serious person put more weight in Bush's occassional inability to communicate than in the real-world developments in Iraq, Afghanistan, Liberia, Kyrgystan, or Libya?

Sen. McCain cannot be the only person in any position of authority to see this, can he?

[Roach]

Three things.

First, the Nuremberg Precedent is a greater offense--with trumped up charges like "conspiracy to wage aggressive war--than the current detention of unlawful belligerents in accord with the law of war. While those charges were made up and ex post facto--as detailed in the famous Fuller-Hart debate--the crimes of Al Qaeda are well established, as is there unlawful combatant status. Al Qaeda detainees are not entitled to POW status, as they are nonsignatories, non state actors, and do not follow the law of war requirements for nonsignatories. Nor are they entitled to due process before detention, as there is no individual right to a status hearing under Geneva. Any combatant can hold any other combatant as an act of war. Geneva's Article 5 requires a precondition of "doubt" as to status before a combatant can challenge his unlawful combatant status Nor are immediate trial on war crimes the right of these Al Qaeda trash. Like any combatant they can be kept for the duration of hostilities.

Second, we have treated unlawful combatants with simiarly harsh treatment and worse in the past, most notably in the summary executions of Otto Skorzeny's Operation Grief commandos who raised hell during the Ardennes campaign by wearing American uniforms and spreading misinformation. Unlawful combatants out of uniform have long been permitted to be shot on sight under the law of war. Read about the Hostage Trials and the Partisan Trials from Nuremberg. Reprisals against civilians within reason were authorized in the case of the former. Dig deeper than Jackson's oratory and look at the facts.

Finally, your view betrays an obsession with process and article III involvement that is not required under the law of war. You treat international law of war in much the same way liberals treat our constitution--a set of aspirational principles, rather that written-down rules that either apply or don't apply to particular circumstances based on the text of those rules. It's important to respect those textual limits, because giving POW-style rights to terrorists would encourage combatants in all wars to endanger civilians by fighting out of uniform, using hospitals and other sanctuaries for protection, and similar offenses. The whole point of the law of war is to channel combat to combatants and protect noncombatants. Unlawful belligerents endanger this deal.

Laws of war were never meant to be suicide pacts or mere aspirational commitments; they were always self-enforced contracts between nations that entailed swift and harsh penalties to those that would try to gain an unfair advantage over another belligerent, such as in the summary executions of Operation Grief commandos noted above.

In other words, in matters of national security, no nation was expected to tie its hands behind its back. If both sides reciprocally observed basic requirements--such as wearing uniforms and marking hospitals and ambulances among others--then both sides benefit. But all participants were entitled to punish harshly those that would engage in "perfidious" acts. The law of war always was self-enforced; it explicitly permits what are called "belligerent reprisals."

European regimes and pollyanish liberals like Stone increasingly want to impose higher burdens on the US without a countervailing benefit, such as the absurd demand that unlawful Al Qaeda combatants be given full POW protections. No regime (or individual) fully participating in the rough and tumble world of the international order would have dreamed of making such a demand in the past, not least because it did not want to face the difficulties such a system would create for its own forces.

Now, however, European regimes and their American patsys feel increasingly free to impose demands and sanctions on the conduct of the real actors on the world stage. Europe gets to induldge in pacifist fantasies largely because it exists under the American security umbrella. Yet it now wants to bite the hand that feeds it because it has grown incresaingly divorced from the sensible balance of traditional international and law of war rules. So our lack of respect from these "hollow men" hardly concerns me, not least because their orientation to the international order is more one of a spectator than ours.

Bush's harsh treatment of Al Qaeda detainees and defense of the executive's right to employ interrogation tactics short of torture does not offend international law principles; these actions only offends pacifistic liberal principles. In wartime that is almost always a good idea.

[Davld Marshall Evans]

Yes, the UK used various methods against the IRA, which by the way was a terrorist organisation largely funded by donations from the US: no worldwide war on terror then.
But when people were interned their internment was public knowledge, both as to the internment itself and as to the place of internment. And oppressive methods of interrogation of suspects were successfully challenged in the European Court of Human Rights.
That is not to say that there weren't some dirty tricks used by the authorities in combatting the IRA...
And why isn't the USA a party to the International Criminal Court - the UK is. Is it really unthinkable that the USA should be subject to any external jurisdiction?

[JSFM]

Roach, you again miss the difference between a legal and a moral argument. No one disputes that we have acted deplorably before. However, when you reduce the debate to a legal one, you abandon all pretense at honor, morality, and international leadership--the first two of which, at least, domestic law was created to serve and further. From your own blog: "Torture degrades the torturer as well as the victim. It creates a race of monsters living in one's society and tends to erode the esprit de corps of the military in a liberal democracy....One never knows if a particular detainee is a ticking time bomb. Torture becomes addictive to an organization that resorts to it on the principle that no stone should be left unturned." That same argument, taken on a higher level, leads to Professor Stone's conclusion. And even if torture could sometimes be necessary, wouldn't it be vital, as Professor Stone also argues, that the legally informed members of our society agitate against it as a check on its usage? You may recall the phrase "checks and balances" from your studies of the Constitution; America was built on the idea.