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November 10, 2005


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JSFM, perhaps the phrase "separation of powers" has occurred to you from your own studies of the Constitution. It is not costless to have congressional and judicial meddling in the preeminent area of executive discretion: his powers as Commander in Chief. Torture is wrong, but not every act complained of by Stone is torture. He also complains about our detention of AQ detainees without judicial review and procedural due process. There is nothing immoral, wrong, improvident, or questionable about the current detention of these enemies, legally or morally. They are the enemy and should be detained until AQ sits on the deck of the USS Nimitz and signs papers of surrender in the manner of the Japanese at the close of WWII. If they don't do so, well, "You dance with who brung ya," as we say in Texas.

Further, there is a problem with the McCain Amendment specifically insofar as it moves beyond the existing torture statute to mandate affirmative duties of "humane" treatment, whatever that means. We should use everything short of torture to get these AQ dirbags to talk. It's the only way to win this kind of war, that is, through human intelligence. They're not entitled to remain silent, have counsel, frustrate this process, or have anything more than bare minimum treatment, far short of that accorded to bona fide POWs. They certainly should not have the extensive rights--counsel, silence, full POW status, etc.--that have been argued for by Bush's liberal critics.

There is more at stake than our alleged international leadership. We must achieve victory! And that takes doing some harsh things, whether assassination, indefinite detention, harsh interrogations, and the other means at our disposal under the law.

The President in this sense is not like a moralistic objective third party. He's more like an advocate, a partisan for US national security. Advocates go up to the line and do not cross it. Stone and those like him would impose upon this process greater and greater legal and judicial scrutiny, which will undermine the President's effectiveness and the war effort. It will make that line more definite and more restrictive, but the only beneficiaries will be Al Qaeda and those without responsibility for our security, such as Stone. Far from restoring our credibility, such efforts will help Al Qaeda to pull off another spectacular attack, and then all of these discussions will appear as academic and cut off from reality as they in fact are. Lawyers like Stone contrast Reason and Power, with little recognition that rules in war are fundamentally those of force and power. In war one kills the enemy before he kills you.

Perhaps because he and most of his peers have so little experience with military matters, in many cases having undertaken active efforts to avoid Vietnam service, their appreciation for the fundamental distinction between these two arenas is so minimal and ill informed.


This has to be the worst post in the history of the University of Chicago law blog. Reciting left wing shibboleths and mischaracterizing the historical record are not a good start. Following up with “I intended to provoke some response, so that's good.” seems like a dodge of the worst sort.

One important factor to remember about Justice Robert Jackson at Nuremburg is that he was magnanimous in victory. During WWII the right and left united in the effort to defeat the Axis Powers. In the United States, only the German-American Bund provided organized opposition to the war. It was outlawed and many of its members were interred during the war and later deported. So far, Lynn Stewart is the only member of the “Terrorist-American Bund” that I have seen arrested.

Calling terrorists detainees who have elementary rights of due process and fair proceedings is an outrage to their victims. In any previous war, those captured out of uniform or conducting hostile activities from hospitals or mosques would be briefly interrogated and summarily shot. This is not an outrage but an enforcement mechanism negotiated by civilized powers to prevent civilian casualties. By supporting these terrorists and demanding procedural fairness and rule of law, you devalue the lives of innocent Iraqis and encourage their slaughter.


Roach, where can I buy this easily-read and well-laid-out "law of war"? Who wrote it and from where does it obtain its legal and/or moral authority? It appears from what you have to say that precedent in a prior war is sufficient to render it authoritative in the War on Terror, but that is a weighty assumption indeed, and one I find not at all persuasive.

We either aim for moral progress or we do not, and if we do the former we cannot rationalize our behavior with flawed actions of the past. Maybe now is the time to throw such aims in the air, relying on gloveless, violent tactics for our own preservation, maybe giving a nod to civility and trying not to act in a way that is too much worse than we or others have acted in the past. But if now is that time, then talk of any of these issues is silly, because then only action should matter. And if only action matters then we can throw out talk of the "law of war" (whatever that may be) and "moral authority" and get on with the resulting bloodbath.

So let's go back to the assumption that we should progress morally beyond what has gone on in the past. At the moment we appear to be holding many people the executive calls "enemy combatants" and keeping them in conditions that violate agreed-upon conventions of the treatment of prisoners, particularly at Gitmo. These prisoners are released in droves whenever their mistreatment is documented, released without charge and often with an admission by the adminstration that the prisoners provided no intelligence of note. If they did not commit crimes and did not provide intelligence of assistance in the WoT, then what were these people when they were in the custody of the US? Were they, in fact, terrorists? Were they non-state actors posing an imminent harm (like enemy soldiers legitimately shot on sight because they were impersonating US soldiers, etc.) or even conspiring in planning efforts that would pose an eventual harm? Ex post we have reason to believe that they were not terrorists and that they did not pose a harm (because the government released them, did not charge them with any crimes and admitted that they did not provide intelligence). So if they were not terrorists then they were wrongly treated as such, and our detention does not stand on the same legal and moral footing as might the detention of an actual terrorist.

How might we avoid roping in people we later find to be innocent and subjecting them to treatment some may argue is appropriate for terrorists? If we care about moral progress, then to me it seems rather obvious to treat all of our detainees, including those who are actually terrorists, in ways that we would see as morally or legally justifiable when some of the detainees turn out to have been detained for no valid reason. Our policies cannot be made only for those we believe to be guilty when we appear to be detaining so many who are innocent (unless, of course, we care not about the moral authority of our policies, in which case, see above re bloodbath).


EKF, you cannot buy one book on the law of war. It's like the common law. It has many sources, and consensus and consistency is the key to an enforceable international law norm. The proponents of development like you would have that law "evolve" every five minutes and without much regard to the actual practie of states, which is the key to a law of war norm. Your question is like asking, "Where can I find this law of 'negligence?'" That said basic primary sources include Grotius, Lassa Openheim's treatise, the Lieber Code of 1863, US Army's Field Manual 27-10, the Hague Convention, Geneva, the Nuremberg Tribunals, and US cases like Quirin and Yamashita.

The problem with your dimissal of precedent is that the alternative, the ever developing law of war recommended by pacifists would be both unenforceable, unworkable, and present the injustice of ex post facto rules, as was the case in some of the more outlandish Nuremberg cases.

Nuremberg, which Stone claims to respect,nonetheless had this to say about unlawful combatants in a case involving the trial of certain German forces for the execution of Yugoslav Partisans:

"The evidence shows that the bands were sometimes designated as units common to military organization. They, however, had no common uniform. They generally wore civilian clothes although parts of German, Italian and Serbian uniforms were used to the extent they could be obtained. The Soviet Star was generally worn as insignia. The evidence will not sustain a finding that it was such that it could be seen at a distance. Neither did they carry their arms openly except when it was to their advantage to do so. There is some evidence that various groups of the resistance forces were commanded by a centralized command, such as the partisans of Marshal Tito, the Chetniks of Draja Mihailovitch and the Edes of General Zervas. It is evident also that a few partisan bands met the requirements of lawful belligerency. The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have met the requirements. This means, of course, that captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such captured members of the resistance forces, they being franc-tireurs."

The seminal 1863 Lieber Code said, "Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

Far from being retrograde, the absence of these rules would endanger noncombatant civilians by encouraging all fighting fources to hide among civilians, discard their uniforms, and behave as a rabble.

EKF, setting aside that issue, your main point is a serious one. It is unfortunate that people who are not in fact terrorists come into our purview during war. We are right to find out who these people are and release them. They certainly should not be mistreated, and it's important to have professionals involved in every stage of detention to avoid mistreatment. Abu Gharib was a shame not because the prisoners' rights were violated but because it showed a disorderly, poorly commanded US unit behaving unprofessionally. Detainees should accelerate their own release by talking and authorities should interrogate them to determine their status. Not talking, lies, and obfuscation are likely indicators of an actual terrorist, who are advised in their own manuals to keep their traps shut.

Further, surely you are aware, EKF, that there are costs to a policy of release. We have released some people from GITMO who have returned to the battlefield. We, in our magnanimity, have also released some likely Taliban and AQ fighters who we deemed unlikely to reoffend, because of their youth or old age, for example. These kinds of decisions should be left to the executive. Wars require swiftness and certainness of certain decisions. Soldiers decide on the color of a uniform, the glint of a scope, or the manner of holding a weapon whether to kill someone from 1,000 meters away. That's the nature of the thing. It's much less worrisome that some people, found in an unfriendly country with unfriendly forces, such as Arabs in Afghanistan, might have to spend some time demonstrating their innocence to US authorities who are eager not to keep innocent people in order to make room for bona fide terrorists.


Would anyone who happen to know about a US caselaw regarding a Hague Convention non-return ruling by a foreign court accepted for enrollment in a US court? Urgently needed for a current case. Any information would be greatly appreciated.

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