Medical Malpractice 3

by hilzoy

(This is the fourth in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees. A Word doc of Graham's speech is here.)

Two medical malpractice claims have come out of this…. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care"—Senator Lindsey Graham.

In our last post, we linked to a motion (pdf) filed by the attorney for Sami al-Laithi, alleging medical malpractice. As we said then, anyone who wants to know which "frivolous" cases Lindsey Graham is talking about should read this motion in its entirety. As before, bear in mind that none of this information would be available if Graham's amendment had already been in force.

Al-Laithi's motion contains a number of other allegations of medical malpractice. There are too many of them to be listed. However, a few that stand out:

* pp. 8-10 describes a Afghan juvenile with a history of mental illness. During the war in Afghanistan, he was ordered to stop (in English); he does not speak English, kept walking, and was shot in the top of his right thigh bone. He was operated on, but was not told that his bone had been broken, or that a bolt had been implanted in it. At Bagram, he was forced to walk every day for three months; "He cried and screamed from pain until he would collapse unconscious." (p. 9) He was then taken to Guantanamo; on his arrival, he could not walk, having been strapped very tightly in the plane. He was ordered to sit cross-legged with his head touching the floor, and screamed and passed out. He was sent to isolation.

"Approximately one week later he felt something pressing the flesh around his thigh. They took him for an x-ray at the hospital and it turned out that the bolt used to hold the bone had broken. His hip was black from the decay and infection. He needed a new metal hip. When they did this operation, they made the hip replacement four centimeters too short. When this mistake became apparent, rather than operating again, they merely told him he should wear one platform shoe."

* p. 14:

"[redacted] is from Yemen. He had an injury to his shin and the US amputated more than necessary. However, because he has refused to cooperate with his interrogators, the US military refused for two years to give him a prosthetic limb. The clinic showed him such a prosthetic several times and said that he could only have it if he talked to his interrogators.

Other prisoners who have been denied prosthetic devices unless they cooperate with the interrogators include (...) [redacted] from Saudi Arabia who was denied a prosthetic limb for more than eight months, [redacted] from Yemen who was denied a prosthetic limb for more than two and a half years, and [redacted] from Tukistan (sic) who is without a prosthetic foot to this date, after three years."

* p. 16: One detainee reports the following:

"One mental health professional actually described to Mr. Begg how he could hang himself. She said that he could take his underwear, thread a blanket or trousers through this, and use it to hang himself. Mr. Begg has since been unable to get this image out of his mind, and it haunts him constantly. For a mental health professional to say this to a patient is the height of stupidity, irresponsibility, or sadism."

* pp. 18-20: A prisoner was injured by a bomb, and had five operations on his shattered leg while in Pakistani custody. He was about to recieve the main operation in which his bone would be fixed when he was taken into American custody and moved to Kandahar. There he was beaten and left naked, and did not receive medical care. On his transfer to Guantanamo:

""They gave me no medical care. They never changed the bandages. They gave me no pain-killers." He was in Camp X-Ray screaming in pain. He was afraid of infection. Every time he asked for new bandages, the US personnel said, "Tomorrow."

This went on for fifteen days without relief. Ultimately the wound swelled up alarmingly and the sin (sic) became discolored with a bad odor. The pain became much worse.

"One night I was crying in pain and I asked the guard to get a doctor. A translator came to me and said, 'You get no treatment until you admit to being a terrorist.' I said I need medication and pain killers. The translator held out some pain killers but said, 'I'll give you none of this until you confess.' I said, I bleed too much. 'Muslim blood is worth nothing', he said.""

Eventually, he was told he would have to have his leg amputated, or else risk gangrene. He agreed, but the wound was infected, and so he had to have six more operations, cutting off a little more bone each time. A year later, the wound swelled up again; this time, the doctors discovered that they had left some cotton in the wound during the previous operations. He had three more operations as a result. A year and a half after that, "the leg got infected again with pus, and it took him six months to get medication. The doctor found that they had forgotten to take the wires out from the second round of operations. On May 27, 2004, they finally removed these. This was his eleventh operation in Guantanamo Bay."

These are just some of the allegations contained in the Al-Laithi motion. There are others. Read the whole thing. If you really feel ambitious, you can read the government's response, and Al-Laithi's lawyers' response to that (pdfs). And then ask yourself: do we really want the detainees described in these documents to have no way to make their case, to question their treatment, or to ask the courts for any sort of relief?

Comments

[Anarch]

My worldview changed that day. At work, we all went out side and prayed, or the equivalent thereof, a few awkward statements and a few minutes of silence on a beautiful September day gone horribly wrong. There really is a huge difference in peoples' points of view.

Mine didn't, particularly, except in an "oh sh** people are gonna die" sort of way. [On topic, I also guessed that this was going to bring out the worst in us and it sure looks like I was right.] It didn't because, well, I never bought into the American aura of invincibility; never bought into the American myths of omnibenevolence or of being universally loved; and understood, from a fairly early age, both that people were angry with us and that they had reason to be angry with us.

It's sort of like, I dunno, watching someone run around telling everyone how wonderful they are. Even if they're doing good work, even if they're trying they're hardest to do the right thing -- which we frequently didn't -- you know that sooner or later someone's gonna pop that loudmouth SOB in the mouth. It won't be warranted or justified, it's an uncivilized and barbarous response... but you can see it coming a mile away and it's particularly galling to be jumping up and down warning people only to be ignored until it's too late. Playing Cassandra for nigh on thirteen years pre-9/11 (as it was in my case) wasn't particularly fun, and I've no particular desire to start up again (see, e.g., the topic of this thread).

[liberal japonicus]

But, really, if I'm being accused of... I actually don't know what -- sarcasm? -- if sarcasm can be read into "snicker," then, sheesh, I don't know anything I can ever say that can't be misread and taken offense with. What's the point?

Gary, if my comment simply quoting what you related to the board earlier was taken as an attack, I apologize. I would point out that the shorter a phrase is, oftentimes this increases rather than decreases the number of possible readings. (I often thing that silence increases the possibilities to infinity, but that's another subject)

And, as I said, if you couldn't tell that Anarch was getting hot under the collar (as would I if I were accused of a 'picayune obsession' (despite the fact that Picayune is my hometown)), you should have. (that last should be read as friendly advice, not as a suggestion of any lack on your part)

[DWPittelli]

I am paraphrased as: "Torture can't be happening because we're hearing about it." But actually, my position is quite the opposite, basically that "THIS torture can't be happening because we'd be hearing MORE about it." In short, Sami al-Laithi is a liar or is delusional. I make no claim about other torture elsewhere. I concede that the fact of other torture elsewhere is proof that Americans are capable of torture. But the actions of both whistle-blowers and the armed forces in these incidents are also evidence that such matters are not and could not be routinely covered up (unless they were performed by different types of people at different types of locations, such as the CIA-run prisons; which still makes al-Laithi's claims false; although of course whatever moral outrage you feel about Guantanamo would properly be the same if the torture were done by the CIA).

I agree that habeas corpus is a bedrock of our freedoms, because an executive that can hold people without the consent of an independent judicial branch, can initimidate us all and maintain a dictatorship. That said, an executive can obtain no such power advantage by detentions overseas, or of noncitizens. Further, non-US citizens, in war, held overseas, have traditionally not had habeas corpus rights, and the recent SCOTUS decision granting some such rights was based on statutory interpretation, not a constitutional requirement, and was focused on the quasi-US status of Guantanamo. (What is the grand import of this if we can hold prisoners overseas instead; we'll just stop moving them to Guantanamo?)

My apologies to Hilzoy on my gender confusion. However, I think that misreadings such as Jesurgislac's failure to pay attention to even the opening paragraphs of The Geneva Convention relative to the Protection of Civilian Persons in Time of War, are a bit more relevant to actual arguments.

[Jesurgislac]

DWPittelli, I honestly don't care what gender someone supposes me to be online - on some discussion topics it may matter, but in this area it does not make a blind bit of difference.

However, I will admit to feeling somewhat perturbed that you evidently have no idea that Iraq and Afghanistan have both ratified the Geneva Conventions (including the Fourth, "relative to the Protection of Civilian Persons in Time of War") in 1956, and are therefore both "High Contracting Parties", as much as the US is: the Conventions apply to armed conflict in Afghanistan as much as in Iraq. Indeed, 188 nations have ratified the Geneva Conventions: they are considered customary international law. A national of a country that is a High Contracting Power to the Conventions, fighting in another country, still has the right to be protected by the Conventions.

According to the Third Geneva Convention, the US was required to treat all prisoners as prisoners of war until proven otherwise.

The Conventions, it's true, say nothing about how to treat someone who was kidnapped from a state where no armed conflict was taken place, and then imprisoned illegally for an indefinite period of time, which is how some at least of the prisoners in Guantanamo Bay were taken there.

[Jackmormon]

That said, an executive can obtain no such power advantage by detentions overseas, or of noncitizens.

This seems very wrong to me for a number of reasons. For one thing, in at least a few cases (I'm thinking specifically of the Lackawanna Six), defendants with US residency or citizenships were threatened with being sent to Gitmo. The existence of extralegal sites should make us all a little nervous. As for the reasons that have to do with all those human beings who don't have the benefit of US citizenship, I can't find a way to put my thoughts intelligibly and politely, so I'll stop here.

[rilkefan]

GF - how about "Great minds think alike" next time? "Snicker" struck me as "Pwned" would have if you were the type of person who would use the latter unironically. And since of course you're not that sort of person, I think Anarch would have correctly understood you if you had in fact written "Pwned".

DWPittelli, here's hoping you stick around and find a niche in the community.

[liberal japonicus]

I am paraphrased as: "Torture can't be happening because we're hearing about it." But actually, my position is quite the opposite, basically that "THIS torture can't be happening because we'd be hearing MORE about it."

I'm not sure how this functions as the opposite of the statement. I presume that 'THIS torture' refers to torture at Gitmo. Perhaps one problem is that you seem to think that torture is mistreatment specifically designed to elicit information. I would define torture as repeated mistreatment without making any reference to the reason why it is being done. GIven that the following incident occurred, if similar acts occurred with prisoners and they were not given medical treatment (as the information that Kath and Hil has posted points to), that would be torture, I think. Given that officials seem not completely forthcoming in a case involving a US soldier, the argument that we would be hearing more about torture if it were going on seems anodyne.

This article noting Japanese mistreatment of POWs and their punishment for such mistreatment might be of interest

from the article

"Our military prosecuted the Japanese officials who devised specious rationales to deny court-martial protections and 1929 Geneva Convention protections of our captured servicemen tried in Japanese military commissions," says Neal Katyal, a Georgetown University law professor who is representing Salim Hamdan, a Guantanamo prisoner facing trial. "The government today has launched prosecutions at Guantanamo that mirror those Japanese prosecutions, despite the fact that the Geneva Conventions and court-martial protections for defendants have gotten far stronger, instead of weaker, in the years since World War II. That is the essence of our claim before the federal courts."

[Anarch]

DWPittelli, here's hoping you stick around and find a niche in the community.

Agreed.

[Jesurgislac]

DWPittelli, here's hoping you stick around and find a niche in the community.

Me too.

[DWPittelli]

Jesurgislac: "you evidently have no idea that Iraq and Afghanistan have both ratified the Geneva Conventions (including the Fourth, "relative to the Protection of Civilian Persons in Time of War") in 1956, and are therefore both "High Contracting Parties"... A national of a country that is a High Contracting Power to the Conventions, fighting in another country, still has the right to be protected by the Conventions.

Actually I mentioned that an Iraqi caught in Iraq is probably* covered, and I will stipulate the same for an Afghani caught in Afghanistan. However, nationals of third countries which have diplomatic relations with the US are explicitly not covered by that convention (re Civilians).

(*I say "probably" because there remains the question of if and exactly when each nation has a real government and we are no longer occupying powers, but rather there assisting sovereign governments.)

[liberal japonicus]

DWPittelli, here's hoping you stick around and find a niche in the community.

moi aussi

[rilkefan]

Damn echo chamber in here.

[Jesurgislac]

DWPittelli, you assert that I had failed to note:that the Convention applies only to "armed conflict which may arise between two or more of the High Contracting Parties" and to "cases of partial or total occupation of the territory of a High Contracting Party."

To be precise, the opening paragraph of Article 2 says:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

So, plainly, it applies to the "armed conflict" in Iraq and in Afghanistan.

It is true that the Convention explicitly says:

Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

So, the Fourth Geneva Convention applies to Iraqis in Iraq, and to Afghans in Afghanistan: it was assumed that (for example) a British citizen in Afghanistan will, as the national of a country on normal diplomatic terms with the US, not be treated as if he were an enemy combatant unless he had "committed a belligerant act".

You see, the Third Geneva Convention specifies (Article 5):

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Any citizen of a nation on normal diplomatic terms with the US ought to have been regarded as a neutral, unless they had committed a belligerant act towards the US military or its allies: had they done so, they immediately fell under the protection of the Third Geneva Convention, until their status was otherwise determined by a competent tribunal.

[DWPittelli]

Jesurgislac: "According to the Third Geneva Convention, the US was required to treat all prisoners as prisoners of war until proven otherwise."

Actually, the Third Geneva Convention, Article 4, part A, paragraph 2 says that members of "organized resistance movements" are covered provided that they

"fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war."

It is true that Article 5 says:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

But it does not say what this "any doubt" standard means. Historically, the soldiers who captured a man without insignia themselves had no such doubt about his status, and execution of the illegal combatant followed, often with only the involvement of lower-ranking officers, if any.

You can argue that the text means that there is always doubt until the "competent tribunal" weighs in, but the lawyers who wrote the text could have made this clear if they so chose. At any rate, even under your "doubt" formulation, there is no requirement for the regular Judiciary to get involved.

Regarding the heart of this matter, whether the Judiciary need be involved, to be continued... (I have to attend basically a PTA meeting.)

[Jesurgislac]

But it does not say what this "any doubt" standard means.

No, it doesn't. But the default is clearly: if someone was shooting at you (or whatever "belligerant act" means) and you take them prisoner, they become a prisoner of war. If you (the Detaining Power) believe they do not deserve to be a PoW, Article 5 allows you to move them out of the category PoW by means of a competent tribunal.

but the lawyers who wrote the text could have made this clear if they so chose.

They did make it clear: amply clear. The problem arises when the Convention is being deliberately misinterpreted.

At any rate, even under your "doubt" formulation, there is no requirement for the regular Judiciary to get involved.

When the military, under instructions from the administration, refuse to follow the Geneva Conventions - which is what happened with the prisoners who were deemed without a competent tribunal not to be prisoners of war (and many without even the key test of "some belligerant act") - then plainly the judiciary of the US must step in to resolve the legal issue, or else the rest of the world must assume that the US no longer wishes to be a signatory to the Geneva Conventions.

[DWPittelli]

Rather than reinvent the wheel, I will quote AU Law Professor Kenneth Anderson. (Yes, I'm sure you can quote other law professors who will argue otherwise, but unless the treaty's drafters were incompetent, the fact remains that the law was written ambiguously on purpose.)

"The Bush Administration was--and is--not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open--it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required."

[DWPittelli]

liberal japonicus has compared US action to that of Japan in WWII. Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs, and that the Japanese government and armed forces nevertheless, as a matter of policy, engaged in widespread neglect, abuse, experimentation, torture and even wilful murder?

Does anyone really think that US action at Guantanamo is comparable?

Does anyone think that Japan's actions would have been OK if they went through trials, with a judiciary OKing each execution of a US prisoner, but with just as many prisoners actually killed?

And on the other extreme, has there ever been a respected or serious legal post-war or international tribunal (like that of Nuremberg*) where the tribunal acted to punish a government because it acted "improperly" (i.e., without sufficiently formal or independent tribunals) even while punishing people who were in fact clearly guilty of breaking laws of war (e.g., fighting without insignia, rank, etc.)?

The question of whether there is any doubt that al Qaeda and its allies are illegal combatants (with the probable and time-limited exception of Iraqis in Iraq, and Afghanis in Afghanistan) has been answered by the US as "no, there is no doubt."

We will not be subject to a Nuremberg-type tribunal because we will not be totally defeated (i.e., in the US, even if we lose in Iraq). But if we were, the tribunal's first responsibility would be to decide whether there is actual doubt about our determination that most of our jihadist enemies are illegal combatants, not just "doubt" in the sense that the jihadists themselves claim otherwise.

[Anarch]

Stopping by briefly:

Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs...

Well, yes, since (so the standard story goes, LJ can correct me if I'm wrong) the Japanese bushido culture didn't admit of a category "POW", only of those too cowardly to commit seppuku. In that sense, the (official?) Japanese position was that they hadn't taken POWs but, essentially, slaves to be treated and disposed as such. It doesn't make things any better -- I'm not sure if it makes things worse or not -- but it's a qualitatively different category of malice, error, horror, whatever you want to call it, than American mistreatment of prisoners at Gitmo, Abu Ghreib or the like.

[That's towards the Americans, btw. Towards the Chinese (or other Asian races) they were... markedly less genteel.]

[DWPittelli]

Yes, but Japan being a signer of the Geneva conventions, their "code of Bushido" defense was irrelevant in the face of the actual text of said treaties.

However, if Japan's actions were limited to indefinite detention of unlawful combatants (who wore no insignia and did not themselves follow the rule of war), and their only "crime" was that their military investigations of claimed abuse were arguably lax, in the face of a level of abuse similar to that in Guantanamo or Abu Ghraib, then Tojo et al would not properly have been tried and executed under the rule of MacArthur.

[liberal japonicus]

liberal japonicus has compared US action to that of Japan in WWII. Does anyone doubt that the problem with Japanese conduct in WWII toward US prisoners was that the prisoners were, in fact, proper combatants and POWs, and that the Japanese government and armed forces nevertheless, as a matter of policy, engaged in widespread neglect, abuse, experimentation, torture and even wilful murder?

Does anyone really think that US action at Guantanamo is comparable?

There's a bit of problematic elision here. Though I did link to the article, I think it's a bit strong to say that I 'compare' the two in totality. (especially since I didn't write the article)

What I took away from the article (and if I can finish a translation I am working on this pm, I hope I can write something a bit more detailed) was that the legal basis for which Japanese were tried for war crimes is precisely the same basis that US soldiers could be tried.

That's why I think your comment
We will not be subject to a Nuremberg-type tribunal because we will not be totally defeated

is quite revealing. The main complaint against the Nuremburg trials was that rather than being some standard, it was simply victor's justice. If I read your comment correctly, the reason that we impose these kinds of conditions on the people that we capture in the WoT (or who are turned over to us) is simply because we can. I don't think this is the standard that we Americans have previously held ourselves to.

Again, I'll try to post something to address the notion of illegal combatants and your discussion of Nuremburg type trials later.

On preview, the question is raised about Japan's adherance to the Geneva protocols. They did not sign the 1929 protocols (they did sign the 1907 Hague convention), but gave a qualified agreement in 1942 to abide by them. I'm not precisely sure how that agreement was qualified, but will try to find out.

[DWPittelli]

Jackmormon,

My point was not that it is morally acceptable for the President to hold noncitizens who are actually innocent. My point was that the President, even if he aims to be a tyrant, cannot intimidate citizens (i.e., those who would otherwise vote in one of his political opponents) even if he has unlimited power to detain certain people, provided that those people are not US citizens. (And very limited power to intimidate a few voters if he has authority, as under ex-Parte Quirin, to detain citizens who are overseas or have just returned from overseas in order to attack the US.)

The Constitution does not protect against every possible evil, and neither does any body of laws; it protects against the evils which are actually likely to be of some temptation to people, especially people in power. And it especially protects against the evils which would allow those people to maintain power at the expense of our liberties.

It's the fact that the President has no power-incentive to falsely imprison noncitizens that leads to lower standards for such (in conjunction with war, which necessitates the same).

[DWPittelli]

My position is not that "the reason that we impose these kinds of conditions on the people that we capture in the WoT... is simply because we can."

Naturally, being able to do something is, universally, and by definition, a precondition for doing it. (In that sense, "victor's justice" is the only kind of justice that has ever existed.) But the reason or motivation for doing it is a separate issue.

In this case, the reason we hold illegal combatants is to win the war on terror. Giving them the rights of legal combatants or of civilian defendants would hugely weaken our ability to wage war, or hugely weaken our criminal justice system.

If, based on a Guantanamo detainee's claims, we decide they have a right to civilian oversight, we will of course see that most or all of them will make similar claims and demand such hearings.

The judiciary is not a talisman guaranteeing fair outcomes. These hearings will either be a farce, or they will be serious.

If they are a farce (e.g., the judges essentially just listen to the military, and don't allow much of a defense), then we will have created a precedent, and the expectation among our judiciary that it is acceptable to run farcical trials. This puts all of us at risk, in a way that today's system (however harsh or arbitrary it seems when listening to the detainees' claims) does not.

If the hearings are serious, then that means the detainees will have lawyers, they will have claims which are made public, however outrageous, to be used as propaganda. They will depose and call as witnesses the soldiers who captured them, from around the world, taken from combat; their family members from around the world, to act as character and alibi witnesses; their imams, for the same purpose; our intelligence officers and analysts, to tell how they knew of the defendant's status and location. In short, it would completely disrupt our war effort, and it would give our enemies total information about our human and technological intel.

In comparison with the above, POW status under Geneva would be somewhat less problematic. Although allowing the prisoners to communicate with each other and their compatriots, and prohibitions on essentially all kinds of interrogations using any level of coercion or even bribery (e.g., ice cream), would certainly be less than helpful.

[Frank]

DWPittelli- You seem to be imagining that the civilian courts will have to hear all these cases, but I'm pretty sure that isn't how this works. I'm not saying you necissarily are imagining its this way, just that you seem to in your arguement.

Courts can look at the lawyer's initial motions and decide what is reasonable, they can throw out ridiculous cases made for propaganda purposes. I think that a judiciary which is 60% Republican and 100% non mentally retarded is unlikely to show undue patience for frivolous cases.

[DWPittelli]

Frank,
Let's say the detainee says, "I'm not a terrorist. I was just strolling by a house they were raiding. I was in Iraq to pick up my bride. Please allow us to depose or question at a hearing: the soldiers who arrested me; any soldiers or intel agents who believed I was a terrorist; any intel concerning who was or wasn't a terrorist at this house or in this area, to see that I'm not on the list or don't fit the profile; any aerial or other surveillance of the area in the weeks up to the arrest; my brother; my fiancee; my imam who was to marry me."

These kinds of requests would be completely normal in a civilian case, and would in fact be the best way to exhonerate him if he is innocent. You're the judge. Yes or no to the requests? Which ones, and why?

How do you avoid either of the evils I wrote of? Wouldn't even any possible "middle ground" (accepting some but not all) substantially risk both evils?

[Bruce Baugh]

DW, you've said repeatedly (and so have others) that the military tribunals required by the Geneva Convention would be an undue burden. But it's not clear to me why. Eyeballing POW info suggests to me that in World War II we handled about a hundred thousand POWs all told. Maybe more, maybe a bit less, but it's a nice round figure. There were, inevitably, some violations of treaty requirements and standards of decency, but on the whole it worked - people were given hearings and then treated in accordance with their status as settled then.

Right now we seem to be talking about a few hundred prisoners at these place.s I think there are more than that, simply because we know we're not getting the whole story yet, but say it's a thousand. That's one percent of the load from WW2. Now granted that the Bush administration has never taken this conflict seriously, not when it comes to properly funding crucial services, but even so.

It also seems like we'd be way ahead in the battle for hearts and minds if we had immediately examined the guilt or innocence of the people we detained, so that those for whom there was no credible evidence of guilt could go free immediately. That would have really undercut a lot of rhetoric on the part of my country's enemies. Way too damn late now, though.

Now I'm not sure there is anything to be done, just fighting as best some of us can to keep it from getting a whole lot worse.

[CMatt]

Let's say the detainee says, "I'm not a terrorist. I was just strolling by a house they were raiding. Yes, or driving. Let's also say, for the sake of argument, that they are being 100% honest with those two statements. Tough, hope they enjoy "Club Gitmo".

Hope this doesn't radicalize anyone in their extended family, or their friends and neighbors. Let's say we send them to Gitmo the long route, via Egypt for six months. A year later, does the realist nationalist perspective offer any grounds for ever letting this person out of solitary alive?

Let's say we cede total control over non-citizens to the Executive, now. Let's note that we've already ceded some citizens' civil liberties, and invaded a country tangentially related at best to the 9-11 attacks. Let's note our propensity to respond to threats by "getting tough", on whoever or whatever is accessible and can plausibly be linked. What happens when we get attacked again? Here I'm positing a terrorist attack (inevitably possible if we retain civil liberties).

I don't mean to dismiss your hypotheticals. There are certainly risks associated with providing detainees the means to exonerate themselves. But if the standard is that no one may be released who might possibly act against us in the future, we must be willing to accept the indefinite incarceration of many innocent people. And the inevitable blowback.

Even if we are willing, an affirmative case for this striking change in posture needs to be made which demonstrates not only that potential harms exist - but that this is the best method for addressing those harms while also not imperiling our other important goals. Goals like defeating the international terrorist organizations which ostensibly are the reason for changing this policy in the first place.

Will this change yield more actionable intelligence for us than we lose through non-cooperation, non-extradition, and possible outright hostility from other nations? We're not going to defeat all terrorist organizations of international scope without help. If this isn't demonstrably more effective, is it better to lose that intelligence than to risk the release of any detainee who might possibly act against the United States in the future? How many of these someday-maybe-a-threat guys is bin Laden or Zawahiri worth? Or a Saudi financier?

We're still in amoral territory here. If the affirmative case for this level of executive power doesn't sweep away the possibility of fence-sitting, we might have to venture out.

[Jesurgislac]

DWP: It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open--it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.

Absolutely: the President or the Secretary of Defense were free to determine, for an entire group of detainees, that no doubt arises, no tribunal is required, and so all of them are PoWs under Article 4.

What they were explicitly, under Article 5, not free to determine, is that no tribunal was required if they doubted that any detainee fitted the categories described under Article 4. The Geneva Convention is quite clear on this: "Should any doubt arise as to whether persons (.....) belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

[Frank]

DWP- Well I think I would need to get my clearance renewed for that, but here is what I would do: Ask the DOD to send me the dossier that they have assembled on him. I would clearly meet the need to know requirement for that information. I would handle the documents carefully and dispose of them properly when I was done.

I don't know how much evidence I would need to throw his case out. That would depend to some extent on how credible I found the affidavit or deposition from his Imam and fiancee, and to some extent on what the dossier looked like. I'm guessing that the Army wouldn't need much more than probable cause to hold him indefinately under the circumstances, but unlike many people here I have no background in the law so I don't know in detail what the law requires.

What I wouldn't do is ask anyone in the military to give a legal deposition, unless the DOD's paperwork seemed FUBAR or the alibi was ironclad. An example of ironclad might be if the Imam were a well known moderate cleric and the ceremony were a large mosque ceremony scheduled in the newspapers well in advance.

Medically provable allegations of torture would be different in that I could order that a civilan doctor be allowed to attend the prisoner and examine him and the available medical records and report to me.

Thanks it was kind of fun to fantasize about being a judge.

[Anarch]

In this case, the reason we hold illegal combatants is to win the war on terror. Giving them the rights of legal combatants or of civilian defendants would hugely weaken our ability to wage war, or hugely weaken our criminal justice system.

This presumes that the "war on terror" (odious, odious name, though not your fault) is a military/conventional war to be won in the field, which is -- to put it mildly -- assuming facts not in evidence.

[hilzoy]

DWP: I'd like to apologize for being snippy the other day. I had just gotten through with more driving, in worse traffic, than any human should have to endure, but that's not meant as an excuse for bad conduct; only some stab at an explanation of why I did something I normally try not to do. Sorry.

[liberal japonicus]

My position is not that "the reason that we impose these kinds of conditions on the people that we capture in the WoT... is simply because we can."

I realize that you may feel your position is not because we can, but because we have to. Allowing them access to courts would create a huge propaganda victory for AQ to trumpet mistreatment, so therefore, this must be stopped. This suggsts, I would argue, that if there are any innocent in the mix, their rights can't be acknowledged because it would be taken advantage of by the guilty. Just so I don't get accused of misreading you, here is where I get that:

If, based on a Guantanamo detainee's claims, we decide they have a right to civilian oversight, we will of course see that most or all of them will make similar claims and demand such hearings.

This notion that the innocent have their rights abridged because of the behavior of others unrelated to them seems rather specious reasoning.

Also
However, if Japan's actions were limited to indefinite detention of unlawful combatants (who wore no insignia and did not themselves follow the rule of war), and their only "crime" was that their military investigations of claimed abuse were arguably lax, in the face of a level of abuse similar to that in Guantanamo or Abu Ghraib, then Tojo et al would not properly have been tried and executed under the rule of MacArthur.

It is important to realize two points. The first is that the article is not discussing the trial of Tojo, but of the Japanese soldiers who were executed for abusive treatement of prisoners. 1,029 were tried and 123 were executed, but this was just in Tokyo. Asian countries conducted trials for about 5,000 and 900 were executed. This article discusses some of the problems with the US trials. The point is that those trials were aimed to establish accountability, which is why the op-ed argues that the US would fare badly if evaluated with that in mind. This paper underlines the nature of the trials.

However, the trials were, under the guidance of McArthur, an attempt to teach the Japanese the futility of aggressive war. and as such, they were to demonstrate ultimate accountability. Remember that the charges against Tojo were primarily for waging aggressive war against Allied countries, so-called 'crimes against peace'

DPW also said:
It's the fact that the President has no power-incentive to falsely imprison noncitizens that leads to lower standards for such (in conjunction with war, which necessitates the same).

I'm not sure how you can assert that. The incentive of reminding people that he is a war time president, and that the conflict remains on the front burner.

Now, some scattered thoughts that I said I was writing up, not particularly in response to what anyone has written, but I do believe the discussion on Geneva protections and the status of those taken (or caught by bounty hunters) misses the point, which is that we are not simply talking about rights accorded to prisoners but the concept of human rights as a whole.

Previously it was the nation-state that was the guarantor of human rights, and thus acted as protector, which is why the mistreatment of a nation's citizens is a casus belli (my favorite example of this is the War of Jenkin's ear). This provided a loophole that the Nazis utilized, which was that as the state exercised total power over its citizens, it also had the power to execute them. Thus, the Nazis were very careful to first declare people in conquered territories as citizens of the Reich, and only after that did they send them to death camps. This is why the Nuremburg trials had to create the categories of crimes against humanity and crimes against peace.

Now, the two products of the Allied victory in WWII were the Nuremberg trials and the United nations, so I think we can draw a line from the assertions at Nuremberg and our expanded notion of human rights (which, ironically, has been invoked numerous times to justify intervention in Iraq)

What we now have with the US is that we have essentially returned to the time when a nation is the only guarantor of human rights, thus basic human rights are only accorded to citizens. While the Graham amendment is a red flag, I think that we can see the outlines of this move of racheting back the notion of universal human rights.

As I said, this isn't particularly in direct response to anyone (and in the time I have written this, the conversation has moved on), but that is how I'm thinking about this.