World's Greatest Deliberative Body

by Katherine

At 12:06 today the Senate voted down Bingaman's revised amendment, 44-54. Republicans voting for: Specter, Smith, Sununu, Chafee. Democrats voting against: Bayh, Conrad, Lieberman, Ben Nelson. Not voting: Alexander, Corzine.

At 12:30 today the Senate approved the Graham-Levin-Kyl substitute amendment, 84-14. I originally assumed when I saw the count that the 14 votes were the hard core outraged-by-the-outrage crowd, since after all this substituted for an even worse amendment. I was wrong about that. If you look at the list--Baucus, Biden, Bingaman, Byrd, Dayton, Durbin, Feingold, Harkin, Kennedy, Lautenberg, Leahy, Rockefeller, Sarbanes, Specter--it's clearly a protest vote by senators who simply would not put their names on any bill to strip habeas.

Last night I mentioned six senators as being especially engaged and trustworthy on the torture issue: Bingaman, Durbin, Feingold, Kennedy, Leahy, Levin. I said that when you didn't really know what was going on, you could do worse than following their and their staffs' leads. Five of them seem to have felt they could not support this amendment, even though it replaced an even worse one. The other is Levin, and I guess he felt that he had to vote for the compromise he arranged.

At 12:50 today the Senate passed S. 1042, the defense appropriations bill that all these amendments concerned, unanimously.

So. What the hell happened? And what will it mean for the people in Guantanamo?

No one seems to know. I mean that quite literally:  I don't think there is a single person in the country who could tell you with any confidence what effect this bill will have. Marty Lederman lists just a few of the open questions here.

Most of the people who could make the best guess at what this will mean don't want to talk about it. It's too late to fix it now. If they point out how it could be worse, the conference commitee will make it worse. If they point out how bad it could be, the administration will use their arguments against them later on in court, when it's arguing for the most draconian interpretation possible.

The standard cliche at this point is to talk about how making laws is like making sausages--you'll feel a lot better if you don't see how it actually happens. But according to my Joy of Cooking,

If sausage has the vestiges of a murky reputation in this country, it is probably because of our long-held (and usually mistaken) belief that sausage is made from "parts"--not just various internal organs but the ears, lips, or tails of animals. Most of what is available in America today, no matter what its ethnic origins, is made from nothing more than meat, fat, and spices--and the commercial sausage industry is highly regulated.

So, apparently the comparison would be unfair to sausages. People are looking for other imagery. The prize so far goes to Gita Gutierrez of the Center for Constitutional Rights, who told Newsday: "On the back of a cocktail napkin they have tossed aside protections of individual liberty that have been in existence for centuries."

There are only two upsides. First, the amendment that passed Friday was much worse. Second, this amendment might make the McCain amendment more likely to survive conference and be signed into law.

If so, it won't be because the two make a naturally complementary "package deal", as Senator Graham claims. It will be because the administration decides that while forbidding the CIA from subjecting prisoners to cruel, inhuman and degrading treatment is bad, denying and limiting prisoners' access to courts to enforce those laws is good enough to make up for it.

Or perhaps I should say: it's a pretty terrible package deal if your primary goal is ending the torture and abuse of prisoners or the indefinite detention of innocent people. If that were your goal, you'd vote to end torture cruel, inhuman and degrading treatment, but you would also vote to give prisoners access to court to allow enforcement those laws, and vote for independent investigations and supboenas when those laws were violated. If your primary goal is to protect yourself and your party from political damage from a scandal you know is coming, though, it's not a bad package at all: get credit for opposing the administration's abuse of prisoners, even as you help them hide the evidence. And if the evidence is in the form of people, many of whom were no more members of Al Qaeda than I am--well, their bad luck.

I'm sure I sound bitter, overwrought even. What can I say--it's been quite a week. I don't really know what Graham's motivations are, but I can't think of any good ones that would explain his actions. I remember being so reassured by his questions at the first hearings after Abu Ghraib: not all Republican politicians were James Inhofe or George W. Bush, here was this conservative JAG officer from South Carolina, and he wasn't going to stand for this. It turns out that it could stand for 18 months before Congress did a single damn thing to find out how this had happened or prevent it from happening again. But a few D.C. District judges' dockets get too full, and it's a national emergency. No time for hearings, no time for markup--we must end habeas corpus NOW, in an appropriations bill after one hour of actively misleading speeches. Thanks, Senators.

(by the way: this will probably be my last post here for a while, unless they come up with something even worse out of conference comittee. Thanks to all who read & linked.)

(edited for typos)

Comments

[Gary Farber]

I'm pretty cranky, too.

At least know, Katherine, that you did a tremendously effective job at bringing the word to, so far as I can see from the links to here I've seen, and the links to those links, at the very least, tens of thousands of people.

I think the posts of yours and Hilzoy's, building on your past work and credibility, played a major part in explaining what the facts were to innumerable people, some directly, many more indirectly.

You two made a considerably significant difference in public awareness, in my view. This is nothing but very good.

I know that's not enough. But it's something. Don't push that knowledge out of your head, nor despair.

[bob mcmanus]

Thank you Katherine. I am sorry.

Barack Obama:Yea. Oh well, so many I respect voted Yea, that I won't single him out. "Better than most" is the best we get I suppose.

My guess is that it was decided that the country, maybe the world, would be best served by burying the story, even at the cost of innocent lives. The damage could get too great.

Paul Krugman had it early, maybe even before 9/11, when he studied the tax cuts. It is hard to fight revolutionaries in a system built for reform and incremental change. They aim for the irrevocable. And tonight marked an irrevocable change. Even if reversed, the line has been crossed, the standards lowered, some integrity forever surrendered. A tool, a weapon, an option now exists that didn't before.

A revolution has taken place, a catastrophe. Iraq is irrevocable. The budget, the federal courts, many changes are irreversible. We cannot, and will never return to the way it was before Bush. 84 Senators have become complicit in war crimes.

A counter-revolution will be required, changes actions attitudes more drastic and severe than what the opposition has done.

How do we return habeus to its sacramental place and reinstate its inviolability? It can be done, I believe by surrendering a large chunk of American sovereignty to the world community. The time for World government has come, for America to submit to the consensus of free nations. And we will have to hand over our leaders to the ICC or other int'l tribunals for judgement as a mark of good faith, as penance. Terrible domestic sacrifice will be inevitable.

Some are optimistic. Democrats could win a chamber of Congress. It will be hollow and fruitless. a false dawn. Things are going to get so much worse. And then get worse. Whoever wins, America as we knew it ten years ago is gone. I can only hope that in a generation the right has the greater regrets and sorrow. But we will all share some grief.

You don't control revolutions.

[liberal japonicus]

I agree completely with Gary. I would suggest (and I will do it if you would like) you put all the posts together, possibly with some numbering scheme and stick it in the sidebar. When election time comes for _both_ Republicans and Democrats that voted for the BS, remind the world.

You may also consider going to his Wikipedia page and add some points to the Guantanamo section, though you'll have to be careful to adopt the wikipedia neutral point of view

[rd]

Its a mistake to see this as either the end of the story of or as some sort of death knell for human rights. Most people paying close attention to the issue agreed that, even with full recourse to habeas petitions, detainees would by necessity only enjoy a fairly limited and partial version of the trial process provided in the Constitution. Or so I've been repeatedly assured by this blog and others. That means that a new system has to be defined. Its not the case that rights settled for centuries are being thrown out. Nothing has been settled with regard to detainees of this sort. None of our precedents squarely apply.

So the question is: who devises the required new set of rules? The courts or Congress? For various reasons, Congressional ownership most likely offers more certainty, more speed, more ability to adjust over time, and more democratic debate. The improved Graham amendment's Senate passage is just the first step on the road to full congressional investment on the detainee issue. There is every possibility, indeed likelihood, that the measure will be made clearer during the conference process, if for nothing else than because something's going to past and the administration will want something that won't collapse into chaos. Furthermore there is nothing preventing Congress from returning to the issue, something made more likely by this initial extension of their responsibility.

[Gary Farber]

"My guess is that it was decided that the country, maybe the world, would be best served by burying the story, even at the cost of innocent lives."

I may be all wrong, but I have a suspicion you may view the world as at least slightly more explainable by intent, rather than happenstance and error, than I do.

But, of course, maybe not.

I tend to suspect that many Senators weren't adequately informed, and tended to simply believe what Lindsay Graham said. Perhaps that's naive of me.

[wren]

Katherine and Hilzoy, please know that your posts this week have prompted more than the usual number of communications to my elected representatives and provided the factual information for many discussions on the subject. Gary Farber is correct, your work has and does make a difference. Thank you.

[Richard Silverstein]

Thanks for that update on the various votes.

You may be right that it's good that Congress has finally "invested" itself in the detainee issue. But I'd prefer to have it where it was before with Congress having made no votes endorsing the military tribunals. Now Bush & the Justice Dept. if they ever have to argue this before the Supreme Court will be able to say that the Levin-Graham vote endorsed the tribunals.

Also, how does this effect the Supreme Court review of Hamdan? Does it render the case moot as I understood Graham's amendment would have?

[liberal japonicus]

Most people paying close attention to the issue agreed that, even with full recourse to habeas petitions, detainees would by necessity only enjoy a fairly limited and partial version of the trial process provided in the Constitution.

A lot has been written, not only here but at other blogs, so I think this is a bit of rhetorical sleight of hand. While 'even with full recourse to habeas petitions', they have a limited version of trial rights, my impression is that (and IANAL) the habeas petition should be viewed as the opening where the process starts, and many of those upset with this consider reducing this entrance to a pinhole is unfair. My impression of the other side of this argument is 'this isn't a bug, it's a feature', in that the entrance needs to be reduced to prevent terrorists from attacking us through our legal system. This notion floated up a couple of years ago and was discussed at volokh.com and isthatlegal.org iirc and was pretty much ridiculed. (and does anyone else find the total silence on this at volokh a bit strange?) It is also important to note that this has been an ongoing theme by a number of commentators from the right long before torture allegations surfaced, so I don't think it is unfair to suggest that this has been a continuous argument that uses the. For example this pdf from the Washington Legal Foundation, apparently written after Bush's West Point Graduation speech in June 2002.

Instead of taking September 11th as a reality check, the horrific attacks seemed to further energize these activists. Some are suing to demand that Taliban and al-Qaeda detainees be afforded all the legal courtesies the U.S. Constitution has to offer. Many promise lawsuits against minor changes to domestic intelligence gathering, while others continue to flood the courts with suits meant to expand the rights of illegal aliens and suspected terrorists. Our enemies must be laughing themselves to sleep. Sadly, some federal judges, seemingly unaware that America is at war, are elevating ideological agendas over personal safety and national security. One judge recently put the U.S. military at risk by halting live-fire training exercises on an uninhabited Pacific island to protect non-endangered migratory birds. Others are forcing our Justice Department to make sensitive information and hearings on certain detainees public. Will "Miranda warnings" for foreign terrorists captured overseas be next? Don’t legal activists and nervous libertarians get it? America can no longer afford the legalistic culture they created. Our enemies are not common criminals who can be deterred by traditional means. They follow no rules and measure success by how many innocent civilians they kill.These enemies will, as they did on September 11 th , exploit our every weakness. It’s quite ironic that the very same ideologues who persistently hinder homeland security measures eagerly joined the indignant finger-pointing over government’s inability to prevent September 11 th . They want personal security, but only on their terms. Such an approach is quickly becoming a relic of the frivolous 90’s, as more people understand that in order to effectively preempt future terrorism, we cannot apply an absolutist view of rights to our enemies. Americans should know that if we do, many more of us will lose our most treasured civil liberty-- life itself.

That this has been a goal long before these torture allegations emerged suggests that it is not being proposed in good faith. While hopefully not the end of the story, I pray that this the nadir of this, and at some point, some people will see this for what it is, a rejection for everything that American has stood for.

A few links churned up in the Google wake. This pdf article from The European Journal of International Law.

Interesting article about lawsuits against the US government from Dec2004

[bob mcmanus]

"Perhaps that's naive of me."

Or insulting, to presume that the Senators and their staffs had so little understanding of what was at stake.

The meeting Cheney had last week during which the overseas facilities were discussed.
John McCain had never known they existed? They certainly had been discussed on this blog. It is plausible that other revelations were made to create a sense of urgency. Cheney had been resisting McCain for weeks.

The issues had been in the air for years. No, I do not believe the Senators and their staffs were wholly ignorant of the relevant court decisions and pending cases.

Yet this popped up so fast with so little resistance that I do feel behind-the-scenes discussions were more important than what we were allowed to see. My guess is that Lindsay Graham was point man in order to communicate importance. Somebody or something was immediately threatened.

[Bruce Baugh]

No, I don't find the Volokh silence at all strange. First Prof. Volokh decided that torture was all nasty and icky and he didn't want to look at the issue. Then he obviously decided what a lot of alleged conservatives and libertarians do, that some unjustified war, torture, and incompetence is all much preferable to a bad ol' tax increase or clueful government. It's just the price he's willing to pay for a Republican administration to keep getting his way.

That was mean. But I feel mean about this. I simply don't see how anyone can defend what Bush's crew are up to and claim to have a conscience or a moral sense. I'm appalled and horrified and feel very much betrayed by so many former or professed defenders of liberty.

I find myself inclined to agree with Bob: we have a rogue state unfit to govern itself.

[Bruce Baugh]

Another thing I agree with Bob about: any excuse along the lines of "we didn't have time to think it over" won't wash. Senators and Congresspeople have staffs, who are supposed to keep them appraised of important matters. And it should be the responsibility of someone facing anything pushed with unseemly haste to say "no, wait, I'm not going to vote on this until I understand what I'm voting on".

Not, of course, that that's how Congress does its business, but I tend not to think that repetition makes the offense any less offensive.

[Gary Farber]

"I simply don't see how anyone can defend what Bush's crew are up to and claim to have a conscience or a moral sense."

Setting aside the actual issues for a moment: very few people think of themselves as villains.

I'm sure you know that, so perhaps it's more in the back of your head than the front, at the moment.

I can also think of a number of rationalizations that people could apply to defending the Bush-Cheney torture stance that I have no trouble believing many people can sincerely believe, alas.

Heck, I don't have to think of the rationalizations: there are plenty of them on the net of inters; the only question is when people are being sincere in their rationalizations, justifications, and defenses. (Certainly lots are sincere, in my read; how bright, or morally thoughtful, or responsible and interested in bothering to study the facts, they are is another matter.)

[Gary Farber]

Another thing I agree with Bob about: any excuse along the lines of "we didn't have time to think it over" won't wash. Senators and Congresspeople have staffs, who are supposed to keep them appraised of important matters....

I think the larger devastating issue is that this isn't an issue to deal with by a surprise amendment, and a couple of hours of debate; that's immoral in itself, in its irresponsibility towards justice, law, our Constitution, our rights, and people's lives.

Regardless even of the arguments to be made, that this isn't an issue that must be dealt with by holding extensive hearings, and significant debate, is simply indefensible, in my opinion.

But now I'm just repeating myself.

[cleek]

OT: but for all you White Phosphorus deniers: take it up with the Pentagon.

[Slartibartfast]

White Phosphorus exists. If I've ever said anything to the contrary in previous comments, I must have been drunk. If not, please disregard.

I hope this clears up any possible misconceptions.

[Paul]

"Prisons are built with stones of law; brothels with the bricks of religion."

[Dantheman]

Slarti,

Read the article. It goes just slightly beyond saying the substance exists. The first 2 paragraphs:

"The United States military has confirmed that its use of white phosphorus to quell last year's insurgency in the Iraqi city of Fallujah went beyond creating smokescreens and illumination shells.

US officials now say white phosphorus was used as an incendiary weapon in the Fallujah assault, something the Pentagon has previously denied."

[Slartibartfast]

It goes just slightly beyond saying the substance exists.

I never said otherwise. It doesn't, however, say WP shells were used to melt the skin off of children, or that they were used against civilians in general.

[Dantheman]

Slarti,

Then what misconceptions do you think stating that white phosphorus exists cleared up? Did anyone take up the contrary position?

[Slartibartfast]

Evidently there were some WP deniers on the loose. I never met any of them, but thought it would be a good idea to make sure I wasn't confused with them, whoever they are.

[cleek]

I never said otherwise

please show me where i named you specifically as a WP Denier, Mr Pedant.

[Slartibartfast]

You didn't name anyone, cleek; I never claimed you did. Is there some part of [I] thought it would be a good idea to make sure I wasn't confused with them you're having trouble with?

[votermom]

My only bright spot is that I am proud of Sen Specter's votes. (my state)

[CaseyL]

I went past "outrage" some time ago; there are no words for how I feel about the Bush Admin and its enablers in Congress and the blogosphere.

But I offer, for what it's worth, a few notes of hope:

What Congress does, it can undo. If the Democrats take back one or both houses in '06, we must make it clear that reversing the whole body of pro-torture, pro-Bastille laws is a top priority.

We have been here before, declaring an entire category of persons un-persons with no rights. We have reversed those categorizations, through legislation and judicial opinions.

Social attitudes and political zeitgeists change, generally for the better. Each time they do, the number of people who want to go back to the old ways decreases in number (though not, alas, in volume).

Words of hope. For what it's worth. *Sigh*

[Ugh]

Unfortunately, as I've said here before, I think this bill will be used as follows:

(A) Administration: See, we must not have done anything wrong.

(B) Administration: And in any event the Congress can't restrict the President's war powers, See John Yoo.

(C) Administration: Plus, just try to stop us.

(D) Congress: Whew, glad we got that taken care of, now we can get back to the people's business.

[cleek]

You didn't name anyone, cleek

exactly. and yet you still wrote a personally defensive comment in response. it's sitting right up there under my first comment.

[John Thullen]

White Phosphorus or not, Slart has resurfaced, which is a good thing.

I see that the intent versus clueless foolishness debate has resurfaced with the habeas corpus issue as well. My view is that if the doctor discovers a large mass and can't decide whether it is a large mass of stupidity or a large mass of malignity, but either way you're screwed, then let's call the mass malign and bring in the radical tools to destroy every last cell.

I also find sincerity to be highly overrated as a means to ascertaining the quality of stupidity or malignity. It seems to me that Louis XIV was a very sincere fellow when he deregulated the price of bread, only to find out that Robespierre had perfected sincerity in its sharpest and most final form.

George W. Bush is a master of sincerity. His insincerity is especially sincere, but endearing only to his mother.

I agree with George W. Bush's father. The best thing to do is end communication.

I agree with McManus and Baugh. We are dealing with revolutionaries in a system of incremental change. They've spent the past 35 years in their think tanks devising ways of using stupidity and malignity to destroy the host.

The only way to restore the whole of habeas corpus (and undue the rest of the mess) is to unelect the entire crowd. Call it a Restoration, if you wish. I call it vengeance.

In fact, my interest in becoming President of the United States grows by the hour, now that troublesome crap like habeas corpus is being swept away. I don't like paperwork. It takes time away from maniacal cackling.

My first act as President will be to summon Grover Norquist to the Oval Office to personally inform him that he and habeas corpus are now permanently separated. Dick Cheney's screaming in the bowels of the White House will be a faint but scary feature.

Being a liberal, I don't believe in outsourcing to foreign countries.

Someone bring me Tom Delay. He'll be hugging Ronny Earle's leg.

Thank you Hilzoy and Katherine for your eloquent efforts.

Someday, Dick Cheney will give a speech begging the U.S. Government to restore habeas corpus in full because he won't like the looks of the charismatic but extremely sincere inhabitants of the White House.

[Slartibartfast]

and yet you still wrote a personally defensive comment in response.

Not knowing what you mean by "personally defensive", I don't know quite how to respond to this. Regardless, the molehill seems to be well on its way to mountainhood.

[Gromit]

CaseyL: What Congress does, it can undo. If the Democrats take back one or both houses in '06, we must make it clear that reversing the whole body of pro-torture, pro-Bastille laws is a top priority.

What good will this do if we don't elect enough anti-torture Senators to overrule the Liebermans in our own party? Is this even possible?

[Bruce Baugh]

I'm feeling pretty blunt about this. Take this question:

Is it important that we take prisoners only with good reason, that we establish whether the evidence against them is sound as quickly as possible, that we release the innocent and attempt to correct the flaws in our system that led to their mistaken capture, that we treat the guilty as we would want ours treated, and that all of this is open to review, improvement, and correction?

If the answer is "yes", you pass the test. You are presumptively a good American and decent human being, and may pass on to consider genuinely tricky questions like dealing with captured terrorists in the long term.

If the answer is anything else, you fail the test. Christ and Washington are sad for you. You lack both wisdom and prudence, and rather than attempting to lecture anyone else on hard-headed realism or any of that crap, you need to spend time on the clue phone. It's ringing for you.

I tend to think that things are right and/or wrong for lots of reasons that overlap to varying degrees. When people can't see any big obstacle to this kind of behavior, though, I don't much care whether they're fools, moral cripples, willfully blind, or lying. Or something else. The point is that they're dangerously wrong, and while I may fear their power, I will never respect them the way I respect an honest, observant person who's seriously lookinga t the world and happening to draw conclusiosn I don't share.

[CaseyL]

Gromit, we have 5 Senators who shame the nation, the Senate, and their party affiliation.

But none of them were named Reid. None of them, SFAIK, occupy major leadership positions in the party.

They're followers. They follow the pro-torture, pro-Bastille agenda now because it seems the path of least resistance. They'll follow an American agenda when that becomes the path of least resistance.

[Gromit]

We nominated LIeberman for vice president. I don't think that fact is lost on him, or on his supporters. Until the party stops pandering to self-hating Democrats, I doubt a slim majority will mean the death of the pro-torture, anti-due-process agenda.

I hope I'm wrong.

[Gary Farber]

"exactly. and yet you still wrote a personally defensive comment in response. it's sitting right up there under my first comment."

I know this will count for little or nothing, but I'm with Slarti's trivial snark there. I had the same sort of mental reaction: "...but for all you White Phosphorus deniers...." So, I guess there are Holocaust deniers, and White Phosphorus deniers; who knew?

That sort of thing. But, then, I read the stories this morning, and posted a link here.

And, as well, I was boggled at all the people announcing the revelation that the U.S. Army Used! White! Phosphorus!

To which my reaction was: and?

The "and" is whether it was deliberately used to target civilians, or, perhaps, whether there was excessive indifference to whether it would incidentally strike civilians. Those are legitimate and important questions.

But I tend to be more interested in the opinions of those with a grasp of what they're talking about, and anyone who was previously unfamiliar with the standard use of WP prior to this month isn't in that category. Righteous indignation, even when coupled with firm ignorance, only goes so far with me, I'm afraid.

[Gary Farber]

While we're discussing the Congressional sausage methodology, I'll also point out this.

Without knowing details, I'm inclined to suspect this is as pleasing a "compromise" as the habeas one is. Alas, that I am not more chipper and trusting.

[Gary Farber]

"I don't like paperwork. It takes time away from maniacal cackling."

Don't forget chair-swiveling. You can't be a successful master villain until you've mastered your swivel.

Cackling maniacally while chair-swiveling is almost a lost art, he noted sadly.

[bob mcmanus]

Forgive if this has been linked before, here or at Gary's

Bill Arkin

William Arkin of the Washington Post on Willy Pete.

The comment thread to his post is lng and frequently ugly, but I was most moved by the multiple Vietnam Vets who knew WP well, and were astonished it had been used in Iraq as an anti-personell weapon. Now since they had experience with napalm, my guess is that WP is not a very effective anti-personnel weapon. Or wasn't back on Vietnam, perhaps improvements have been made.

[bob mcmanus]

And I am confused. Is the argument this morning that if the official DOD spokesman says that WP was used as anti-personnel weapon in Fallujah, the official DOD spokesman is lying?

[Gary Farber]

Arkin is good. Comments that go in reverse chronological order are not.

I've skimmed the comments there, Bob. If there are any you wish to particularly highlight, feel free to provide a time-stamp to scroll to.

LATER: okay, fifth attempt to post this now, about half an hour after starting.

42 more times LATER....

Okay, for some reason the page will load in another tab. New try.

Nah. Apprently the entire typebad, er, typepad domain, has fainted. Will try later.

[Slartibartfast]

I think the argument is that someone, somewhere says we didn't use it in that way, bob. I can't recall who and where, though. Certainly the newspaper articles from over a year ago made it clear that we did.

[bob mcmanus]

From Arkin's comments:

"On Willie Pete:
During the Vietnam War, going through BCT/ AIT, our DI's made a joke about calling in Fire-For-Effect with WP on "LBE in the open." See, it would have been a war crime to call in WP on personnel in the open, and besides, human bodies don't burn that well. But to use WP to set their Load Bearing Equipment on fire, while they were wearing it, well, that would be OK."

Barron at 11:26;my emphasis

"As a veteran of Vietnam and as a soldier who was a "Forward Observer" I have seen up close the effects of the use of Willy Peter as we called it. We used it to mark a position so we could pinpoint the accuracy of conventional shells from cannon. I do not recall ever anyone thinking about WP as a weapon. To use this in Fallujah is a war crime and contrary to the Pentagon civilians were killed or should we say incinerated. Stay tuned folks as soon we will have to admit we used a napalm like product also in the "shake and bake" strategy. God help us"

John V at 10:04
...
So in Vietnam it was understood that using WP as an anti-personnell weapon was a bad thing. Swopa at Needlenose adds the final piece:

"“There is nothing that distinguishes an insurgent from a civilian,” the 1st Cavalry officer said. “If they’re not carrying a weapon, you can’t tell who’s who.”"

WP Update

Bill Arkin comes close, but I suspect because of precision will not come out and say it.

It is my opinion that WP was used in Fallujah with at best enough willful negligence to constitute a war crime.

[bob mcmanus]

No War Crime Here

Hey I will link to stuff that contradicts me.
But I do have a little problem with the arguments that because we are not signatories to the relevant protocols there is no crime. It may be technically and legally accurate but that the rest of the world has a consensus that a given action is criminal carries more than simple moral weight.

In any case, the difference between "deliberately targeting civilians" and "targetting people with reckless indifference to their status" is of no comfort to the victims.

[Gary Farber]

I can't recall for sure if it was on ObWings that someone said that Volokh Conspiracy wasn't commenting on the Graham/Bingaman bills, but there is this thread, I've found (and as yet only glanced at).

[Gary Farber]

"It is my opinion that WP was used in Fallujah with at best enough willful negligence to constitute a war crime."

I'd prefer to have an inquiry -- preferably a credible one -- before conviction. But an inquiry seems like a good idea to me. Hey, if the charges are false, best to refute them by close examination. And, of course, if the charges [of war crimes or illegal use of weapons, or any other violation of law] are true, um, charges should be brought.

"I think the argument is that someone, somewhere says we didn't use it in that way, bob."

Well, Slart, in the link that I linked to here and here, the here:

Italy's state-run RAI24 news television aired a documentary last week alleging the U.S. used white phosphorous shells in a "massive and indiscriminate way" against civilians during the Fallujah offensive.

The State Department, in response, initially denied that U.S. troops had used white phosphorous against enemy forces. "They were fired into the air to illuminate enemy positions at night, not at enemy fighters."

The department later said its statement had been incorrect.

"There is a great deal of misinformation feeding on itself about U.S. forces allegedly using `outlawed' weapons in Fallujah," the department said. "The facts are that U.S. forces are not using any illegal weapons in Fallujah or anywhere else in Iraq."

Does that help?

Now it won't let me post, and I'm getting this message: "Invalid URL 'http//amygdalagf.blogspot.com'"

[liberal japonicus]

That was me Gary. I still think that a group site that often takes up legal questions _before_ they approach the court would have a bit more, well, if not outrage, at least discussion about a legislative move to redefine how habeas corpus is applied. It strikes me as one more example of the Republicans in libertarian guise. But this plugs into your point that regardless of what you think of this, to have it be slipped in on an off day with little discussion should be an outrage no matter what you actually think.

[Slartibartfast]

Oh, yes, that's right: it was on the State Department website.

I'm not sure why responses like this are coming from State. I thought I'd read that the article in whichever Brit paper came out with this in the first place attributed this viewpoint to some State Department appointee at some embassy or other, which is even less likely to be correct. But I can't get to the article anymore.

[Gary Farber]

"I still think that a group site that often takes up legal questions _before_ they approach the court would have a bit more, well, if not outrage, at least discussion about a legislative move to redefine how habeas corpus is applied."

That would be nice, wouldn't it?

It turns out to be a not particularly inspirational thread of comments, as it struck me. Much belligerence about no need to give rights to scum, after all, and some rebuttal, at very great length. CharleyCarp makes a momentary cameo appearance at the most recent end.

I've posted links there to the 15 posts here.

[BruceR]

Whoa, hijacked thread!

The 1980 Geneva protocol was never intended to cover WP. Hence the specific exclusion of weapons whose incendiary effects are secondary in the first paragraph. Whether the U.S. signed it or not is irrelevant.

That does not mean WP is nice. It is nearly as dangerous to a target as an equivalently-sized high-explosive shell would be, which is presumably the artilleryman's alternative in such cases if WP use were ever to be forbidden.