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May 14, 2007

Comments

Okay, this story might be sadder. Hard to say.

I could accept Diaz's serving, at most, maybe one year, for the sake of the principle. 24 years is outside even of martyrdom.

I would assume that it won't be 24 years even if he is convicted--that's probably the sentence if you add up the max on every count.

One year would still be the longest sentence served by a commissioned officer in connection with the post 9/11 detainee policies, I think. Could be wrong about that, and it could change with LTC Stephen Jordan's pending court martial in any case.

I'd have a hard time voting to convict, but it's not like I'd be allowed within 1 mile of the jury if this were in civilian court.

Well, at least I've now marked the Wikipedia article as being POV and unreferenced.

(To get up on on a very low soapbox, people erroneously think that Wikipedia is somehow more authoritative than it really is, which is to say more authoritative than its constituent sources. An unsourced article like Robert Diaz is almost worthless except as a suggestion of points on how to build a better article. A well-sourced article, say Pixies, can be a great introduction and gateway to more information about a topic. It all depends.)

1LT Andrew J. Bacevich Jr., son of BU professor and author Andrew J. Bacevich, was killed by an IED Sunday. His father wrote 'The New American Militarism,' an excellent book about the growing militarism of American culture. Mr. Bacevich also has spoken out against the Iraq war for some time.

Just to add to the festive mood.

According">http://www.harpers.org/archive/2007/05/hbc-90000071">According to Scott Horton Diaz is mainly accused of violating the espionage act, which requires not only the release of classified information but “intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of a foreign nation.” His lawyers have a decent argument on the second point, it seems to me...

G'Kar: yeah. See the first comment.

Remember: the US is hurt much more by the news about torture coming out than by the torture itself.

More depressing stuff from Balkinization.

Even more depression:

DAVID Hicks's US military lawyer, Major Michael Mori, has been passed over for promotion and knocked back as a trainee judge in what appears to be payback for his work on behalf of the Guantanamo Bay detainee.
...
However, his commanding officer, Colonel Dwight Sullivan, who is chief counsel for the Guantanamo Bay detainees, confirmed that four of the six military defence counsel who have been considered for promotion had been passed over.
...
Colonel Sullivan said he believed the team selected to represent the detainees was warned that representing al-Qaeda could be detrimental.

Katherine,

Whoops, sorry. I'm on dial-up, so I often don't click through.

Meanwhile, back in http://www.miamiherald.com/509/story/106952.html>paradise, the meaningless and endless wait for nothing continues.

And don't miss the comments to the story. It's a great country.

Ah, from CharleyC's link I had forgotten this bit of lunacy:

No one was seriously hurt, but on June 10 guards spotted three Arabs simultaneously hanging in their cells from improvised nooses -- apparent suicides that the prison camps commander, Rear Adm. Harry Harris, declared ``asymmetric warfare.''

The key question is concerning the classification. If he accessed the information via a classified system then that may be enough. (I would question that truly classified information is accessible via a website on the Internet, I assume that this was on a local Intranet not accessible from the outside.) The military is normally pretty clear about what is classified and what is not, so the fact that it seems to be an open question here is a bit of a mystery.

But in general he does not get to decide what is or is not classified. It should be pretty easy for the military to establish that fact, and if they can not prove it was classified (at the time) and he knew it then I don’t see them proceeding. The fact that the classification was later removed has no bearing – all that matters is the classification at the time. The Article 32 investigation would have established that I believe (think grand jury, the investigation determines whether there are grounds to proceed with a court martial).

His behavior (shrinking it to index card size and mailing it in a card) certainly indicates to me that he knew he was doing something wrong, as does his "crisis of conscious" defense. The timing of the mailing is also certainly suspicious.

His upbringing and his father certainly have nothing at all to do with it.

In terms of “conduct unbecoming an officer”, that is pretty much just a pile on charge. I don’t believe you would ever see that charge by itself – it is added pretty much any time an officer is charged with something else.

I personally believe that your sympathy is misplaced here. The fact that he tried to aid a cause near and dear to you, or that his father was on death row, or that he had a tough time growing up are all purely irrelevant IMO. All that matters is whether the information was classified at the time he took it upon himself to release it. If so, then everything is as it should be here. He won’t get 24 years, but he should get a couple and a dishonorable discharge if convicted.

You can argue that it never should have been classified to begin with, or that Rummy should be prosecuted for deciding to withhold the names, but if it was classified at the time Diaz has no defense at all.

Agreed on all points with OCSteve.

Now, suppose that through some oversight it wasn't classified. Then it's obvious that he was doing something his superior officers would not approve. And it's obvious he knew it.

So in that case should he get years imprisoned and a dishonorable discharge for opposing the mission, even though he technically did not break the rules?

His behavior (shrinking it to index card size and mailing it in a card) certainly indicates to me that he knew he was doing something wrong

Not necessarily wrong from my POV, just not going to make him popular with some superiors if caught (independent of it being legal or not). Shooting the messenger of bad or embarrassing news is quite popular these days in certain circles (and cf. the treatment of the defense counsels as quoted above).

So in that case should he get years imprisoned and a dishonorable discharge for opposing the mission, even though he technically did not break the rules?

Eh, No!

Given that certain "quaint" treaties were signed and ratified by the US that include such clauses as the duty to report the names of people taken into custody/Schutzhaft/whatever-you-may-call-it it should be considered to go after the superiors instead for hiding the info.

You can argue that it never should have been classified to begin with, or that Rummy should be prosecuted for deciding to withhold the names, but if it was classified at the time Diaz has no defense at all.

I think you're correct on the facts here. If the material was classified, he's guilty, and the fact that he was secretive in the way he forwarded the information indicates that he knew that what he was doing was, at a bare minimum, problematic.

I'd be happy to leave it there if I thought that it was remotely possible either that the classification system would, somehow, no longer be used for political advantage, or that Rummy would ever, ever, ever face even the slightest consequence for withholding names or other information, or for any other of his actions while in office.

Is it too strong to say that the folks in power are doing evil in our name?

Is it too strong to say that some illegal actions are justified in that context?

Diaz is more than likely toast, but it's hard for me to agree that he did was wrong.

Thanks -

OCSteve: but if it was classified at the time Diaz has no defense at all.

No legal defense, perhaps. He has at least the ethical defense that he wanted to avoid being complicit in the creation of an American oubliette.

Given that Guantanamo Bay has been an illegal place of detention since its founding, it's a surely a narrow line for the US military personnel posted there to walk: it is illegal for them to obey illegal orders, but some part at least of the orders sending them there and deploying them there may be perfectly legal. The US detention of prisoners of war and kidnap victims is illegal, and insofar as they are complicit in this detention, they are obeying illegal orders.

Diaz is on the side of right, at least, far more so than all the US soldiers who have tortured and murdered under orders from their superiors, at Guantanamo Bay and elsewhere - of whom only one has been sentenced to as much as 10 years in prison.

Jes: This isn’t a left/right issue for me; my opinion is formed solely by my personal experience in the Army holding a SECRET clearance.

It is illegal for them to obey illegal orders as in, “Go into that cell and beat that detainee to death.” Document classification and the handling of classified information does not fall into that same category. You just don’t get to decide to ignore it because you don’t think that the information should be classified.

A silly example from my experience:

There used to be a lot of military communication sites on hilltops in what was West Germany (still there as far as I know). Some were used full time; some were only used in exercises or if the balloon went up. The location of these sites was classified at the time. That was pretty ridiculous because they were an open secret. You could see the antenna farms for miles around and there were public hiking trails on most of these hills. You hike to the top and encounter the fence and the large “restricted area” signs. Certainly all the local Germans knew they were there. There was little doubt that the East Germans knew the location of every single one as the projected life expectancy of these sites was measured in minutes from the outbreak of hostilities.

Yet technically the locations were classified. If I had decided to send a list of the sites to a group who opposed the presence of US troops in Germany I would have been crucified. Yes, it was silly that the info was classified being the open secret that it was. That would not have mitigated the consequences to me had I decided to disclose the information.

OCSteve--it's not just sympathy. I think our classification system in general, and the classification of this information in particular, are fundamentally corrupt.

There doesn't seem to be any doubt that he disobeyed binding regulations, but as far as the Espionage Act w/ the enhanced sentence--if that particular criminal statute has a specific intent requirement, it has a specific intent requirement.

I also think our Department of Justice and executive branch is fundamentally corrupt. I didn't start using phrases like "impunity for War Crimes" until Anthony Kennedy did in Hamdan, but explain to me why that's inaccurate.

OCSteve: It is illegal for them to obey illegal orders as in, “Go into that cell and beat that detainee to death.” Document classification and the handling of classified information does not fall into that same category.

I see the distinction you're making: but the point I was trying to make was that it is illegal for the US to imprison people in an oubliette. Whether or not, for each individual prisoner, a case can be made that holding that prisoner in permanent detention is necessary to the security of the US, I believe that it is absolutely illegal for US to keep secret who they are attempting to keep permanently imprisoned.

IANAL: and I really have no idea whether Diaz's attorney can make a case that his client was as legally obliged to divulge the identities of the prisoners, as Joseph Darby was for his act of whistleblowing. I guess, though, that whether or not such a case could be made, the attorney would probably be wise not to try and make it. But, stipulating that it is illegal to hold people in oubliettes, when the US military ordered Diaz to keep those prisoners anonymous, they were giving him an order which was illegal for him to obey.

" I really have no idea whether Diaz's attorney can make a case that his client was as legally obliged to divulge the identities of the prisoners, as Joseph Darby was for his act of whistleblowing. "

Doubtful. Darby reported it to either CID or his chain of command, he didn't fold it into a Valentine for CCR. And the courts won't review executive classification decisions. The prohibition of classifying information to conceal crimes is dead letter.

Mind you, when I say it's "fundamentally corrupt"--there are plenty of times it's legitimate, and the solution isn't really for individuals to just decide to leak classified information. But the current system is a recipe for literally letting the executive branch get away with murder.

Katherine: Darby reported it to either CID or his chain of command, he didn't fold it into a Valentine for CCR. And the courts won't review executive classification decisions. The prohibition of classifying information to conceal crimes is dead letter.

:-(

Thank you for clarifying. It was a momentary hopeful thought.


I urge you and your readers to take a few minutes and examine:

http://www.usalone.com/cgi-bin/transparency.cgi?paper=1&qnum=pet45

It's a list of the 25 most recent comments made by real Americans participating in an online poll/letter-writing campaign concerning the impeachment charges recently filed against Vice President Cheney, which are now being evaluated by the House Judiciary Committee. Comments can be sent to elected representatives and local newspapers at your option. The participation page is at:

http://www.usalone.com/cheney_impeachment.php

Since this campaign began, three members of Congress have signed on as co-sponsors, in part due to hearing from their constituents. Make your voice heard!

Wow: Per TPMMuck, Comey testified today that Bush and then WH Counsel Abu Gonzales re-authorized the NSA spying program without DOJ certifying its legality. Comey then prepared his letter of resignation because "I believed that I couldn't stay if the administration was going to engage in conduct that Justice Department said had no legal basis."

I'm of very mixed views of this case. My initial reaction is that individuals don't get to choose to release classified information. Even if one's intentions are good, you may not have enough information to realize the national security impact of releasing the information.

This intial reaction is colored by the fact that WAY too many things are classified, and I have a not-so-sneaking suspicion that a lot of it is to avoid embarassment. I'm not ok with that. In a democratic society, citizens are less well informed than they should be when the government over-classifies.

My next reaction is that this certainly looks like a case where things were classified based on a desire to avoid embarassment. Bush didn't want information about the detainees getting out for political reasons, not national security reasons. While classification has been horrifically abused by many administrations (including Clinton's for instance), Bush has taken it to an art form--and like much of modern art, I don't find it pleasing.

On the other, other, other hand I also hate how stealing or revealing classified information tends to be underpunished (see 'accidentally stole classified material in my socks and underwear Burger for instance, and of course potentially the Plame crap). The second case is instructive because it seems that Bush is willing to use classified information in a one-sided way when it politically benefits, and over-classifies when it doesn't.

I think on balance, my prefered dispostion of this case would be to find him guilty of revealing classified information, but subject him to the least drastic penalty, based on a lack of actually harming national security and based on a lack of intent to harm national security.

Katherine: I think our classification system in general, and the classification of this information in particular, are fundamentally corrupt

You may well be correct and I’m not saying I disagree with you. But again that is something to take up with the Pentagon and Rummy. Diaz may feel that way himself, but he can’t take it on himself to do anything about it (short of filing complaints through official channels).


Jes: when the US military ordered Diaz to keep those prisoners anonymous, they were giving him an order which was illegal for him to obey

I’d be really surprised if Diaz ever received a direct order to that effect. Handling of classified material is more of a regulation or a standing order if you will – regardless of the content of the material. Depending on your clearance (and I have no idea what his may have been) you receive annual or even semi-annual briefings on the topic. For the most part these are a review of the procedures and regulations and a not so subtle reminder of what can happen to you if you screw it up. This is all below the level of what the content of the classified material may be – the rules governing its handling are content independent and vary based only on the classification level of the material.

SH--that's probably about right as far as disposition.

I had a vague impression that Clinton tried to change the default position away from classifying, and I know he vetoed some sort of official secrets act that Congress passed & would have us in even worse shape now, but I wouldn't be at all surprised if there were abuses. It's just too tempting to give the executive a rubber stamp like that.

It's also irksome that in many cases a judge can't even look at the evidence in camera--I'd actually trust the judiciary more on this than the executive, which leaks like a sieve.

Under the current system--how much would we know about, say, the detainee policies w/o unauthorized leaks? We basically count on illegal leaks to have any clue about too much of what our gov't does.

OCSteve: I’d be really surprised if Diaz ever received a direct order to that effect. Handling of classified material is more of a regulation or a standing order if you will – regardless of the content of the material.

What difference would it make whether it was a direct order or a regulation/standing order that soldiers were to beat up/kill prisoners? When it becomes a standing order in Guantanamo Bay (as, from accounts of Camp Six, it has) that prisoners shall be tortured, does that make it any more ethical for soldiers to obey these illegal orders?

It certainly makes it more difficult to disobey illegal orders if they're set up as regulations, and more difficult to tease out exactly which part of standing orders is legal or illegal: but it surely does not make an illegal order more legal if it has the status of a regulation.

My feeling is that he probably did the right thing. The right thing, in this case, may very well have been illegal. Since I feel he probably did the right thing, I would hope for the minimum of legal consequences for him (none?). But that's not a legal argument.

I think there is a distinction to be made between obeying an illegal order one knows to be illegal and obeying a standing order that supports an arguably illegal practice. I'm too lazy to make that distinction in detail, but I'm fairly sure someone else here is up to it.

Like Seb, I have mixed feelings. I think it's not up to individuals to decide what's classified and what's not. I also think that the classification system is screwed, and that in this particular instance, I can't see why the names were classified.

In general, though, I think that while civil disobedience is sometimes justified, one of the ways of keeping yourself honest is to be willing to do the time. So if I were Diaz, I would make any case I could based on his conduct not being illegal, but if it was, I'd do the time. I also think that the government does not have to prosecute every crime, and if I were the government, I would not prosecute this one. But then, if I were the government, Diaz would probably be a law-abiding citizen to this day.

More from Harpers on Diaz.

Jerry Falwell's dead.

hairshirthedonist: I think there is a distinction to be made between obeying an illegal order one knows to be illegal and obeying a standing order that supports an arguably illegal practice.

Nicely put. (I mean that for quite a few senses of nice.) I think you're right: and I think Hilzoy has a point as well about being prepared to do the time for an act of civil disobedience.

Except - and I promise this is the last time I will keep repeating this: It seems to me that attempting (as the US government certainly were at the time Diaz released the list of prisoners' names) to keep permanently secret the identities of your prisoners, so that they vanish from the world, is so absolutely illegal, that obedience to the directive to keep prisoners' identities secret is obeying an illegal order, even if the illegal order is hidden in the forest of "All this information is classified and you have no right to question why we want it classified".

I'm quibbling to no point now, as Katherine has pointed out that even if I had a point it's a dead point, so I'll go make pizza.

A suggestion -- set up a system to choose citizens at random to look at classified information. Kind of like jury duty, a 2-week term. The randomly chosen citizens choose what to look at, by random document number or by whatever other method they choose.

If they don't understand why a document is classified, someone gets assigned to explain it to them. To understand the context they may need to look at a collection of related classified documents. And if they don't understand why it should be classified within their 2-week term, the random citizens can declare what they've seen declassified on their authority as US citizens. And if they do, whoever classified it gets a court-martial or an administrative hearing provided they're still in government service, to determine whether they should have known not to classify those particular things.

Maybe there could be an appeal, and if one citizen doesn't understand, two more randomly-chosen citizens listen to the explanations and if both of them agree it should stay classified then it does. And it goes on a list of things citizens have disagreed about in case some other randomly-chosen citizen wants to decide again.

The citizenry needs to be the final arbiters here, but you can't show secrets to all the citizens and keep them secret. So show it to random citizens and let them choose. Say 200 at a time, 25 selections in 50 weeks, that's only 10,000 a year.

The selection process should be reasonably random and also verifiable. Maybe start with a hash on the full names, and then throw in something like the last 2 digits of the last counted House vote. Hard to predict ahead of time but easy to check afterward.

Choose them more than a month ahead of time and you can get discounts on their planefare.

I think there is a distinction to be made between obeying an illegal order one knows to be illegal and obeying a standing order that supports an arguably illegal practice.

With luck, if Diaz is still in prison in 2009 the new president will choose to pardon him.

A brief note on classification. How Diaz got the information will be critical to the prosecution's case. All classified information in hard copy should, by regulation, have a cover sheet with the classification on top of the sheets and each sheet should have the classification printed on it. If the data was digital, the military has a separate network for classified data, so if Diaz pulled the data from that network, I don't think he has any legal ground to stand on. But if Diaz got the data through an unclassified network or if he got a hard copy that wasn't properly marked, he should have a good case.

I agree in principle isn't up to individuals; on the other hand we would be 10x more screwed if individuals hadn't decided to violate these laws. We rely on individuals to disobey the law to have any clue at all what's going on. We would undoubtedly, in my mind, be even worse off as a country if they hadn't done so.

I wouldn't have done the same, in his case; I could probably construct an argument why it was morally better not to (esp. since he's a JAG). But I wouldn't know if that argument were true, or a rationalization. And I can think of hypothetical scenarios where there's no doubt about what your moral obligations are.

In principle, sure, at some level he needs to be "be prepared to do the time" if he's going to leak classified information, but that doesn't mean we ought to feel comfortable telling him that. I'm not. I feel like a gross hypocrite saying that.

And the contrast w/ the record of prosecution and sentences in the detainee abuse cases really does make me ill. Click some of those links in the post...

Hell has frozen over. I fully agree with both OCSteve and Seb on their views of this case.

This may be a perfect example of how legality has little to do with justice or fairness.

Again, the key issue is probably the "classified" nature of the names.

At the same time, even though he felt he was doing the right thing, there was probably an awareness on his part that what he was doing was wrong from the military's viewpoint. He took a chance.

I also beleiev, that if he is found guilty, that he receives the absolute minimum penalty.

And the stuff about his father is irrelevant.

Of course it's irrelevant; it was just sad.

Just to offer john miller potential grounds to disagree: in my mind the leniency of what I would like to see in the sentencing is based on both OUTCOME and INTENT. This is because part of it is a strict liability offense, but the offense is intensified by intent and outcome.

I see 4 major levels of punishment possiblity:

In descending gravity of offense:

1. The person intends to do damage to national security and does in fact do so. Strictest punishment.

2. The person intends to do damage to national security and fails to do so. Pretty bad. I'm still very willing to punish incompetent traitors.

3. The person thinks they are justified in revealing information and that it won't harm national security, but it turns out they are wrong. The either turn out not to be justified, or it ends up being very damaging to national security. This should be less punished than 1 or 2, but still is very serious. You often shouldn't assume that you know enough about the whole world of information to be able to accurately judge from you level why certain things are classified. This level of offense should be punished enough that it should cause people to think very seriously about the possibility that they are wrong and what can happen if they are wrong.

4. The person believes they are justified, do not damage national security, and do not intend to damage national security. This should probably be punished, but at a very reduced level, and is the kind of thing that may need to be ignored via lack of prosecution.

Diaz seems to be in the 4th section.

Okay Seb, I don't see where I would disagree with anything you said there. But trust me, I am sure on another thread I will be able to jump back to my old habits.

Katherine, the problem I always have with people bringing up stuff like the situation with Diaz's father is that somehow it creates a sense of exculpation for the excused. It is frequently an attempt to manipulate and that leniency or forgiveness should be given due to this factor, rather than on the merits. I know it is done all the time, I just don't like it being used in this kind of circumstance.

Sad, perhaps, but unnecessarily brought up.

excused=accused

I'm not his lawyer, you're not a judge, and no one here is his jury. I thought it was interesting, and sad. Sue me.

(insofar as the gov't is arguing that he specifically intended to aid a foreign gov't or harm the United States, it may also actually be relevant. But unless they're stupid they're going with the "had reason to believe" theory.

Anyway, I wasn't aware that I was supposed to limit writing to posts that would be legally admissible in court.)

G'Kar: But if Diaz got the data through an unclassified network or if he got a hard copy that wasn't properly marked, he should have a good case.

True, and thanks for the clarification. I’m assuming the Article 32 investigation would not have recommended the court martial if they had not resolved that, but who knows. Maybe he waived the Article 32 investigation for some reason?


John: Hell has frozen over

Spring seems to be slow in coming, but its not that bad ;)


Sebastian: Diaz seems to be in the 4th section.

That’s a good analysis. I want to agree with it. But…

If I had accidentally misplaced classified material, no intent or analysis of justification involved – a pure boneheaded accident, the least that would have happened would have been loss of my clearance. Once that occurred I would no longer be able to continue to work in my MOS. I would have been re-assigned to other duties for the remainder of my enlistment, or possibly discharged. That fits your level 4 punishment, and depending on the exact circumstances it could be worse and the punishment could rise to your level 3.

So before we even talk about intent or justification as it applies to punishment in a premeditated act such as this, I think we have to rule out punishments 3 and 4 because they are valid for a purely accidental infraction.

Next, the military court can’t really consider perceived justification IMO. I understand that intent may be a legal factor here, but I don’t believe that perceived justification can be. Every soldier has to understand that there are serious consequences for such an action. The thought, “I’m justified in intentionally breaking this regulation because…” should never enter a soldier’s head (note that this is not the “illegal order” scenario). I don’t think the court can consider that and I don’t think it would help the military establishment if they did.

So 2 is the lowest I can go on your punishment scale.

It is sad. It's sad because here we have a person who felt that he had to do something that may have been illegal, and surely isn't standard military practice, in order to rectify an injustice. We can all wonder about the legalities, but there's another point: namely, that someone who does this presumably cares about the law -- otherwise he probably wouldn't be risking his career to get the names of people held incommunicado out -- who has turned into what might be (ianal) a lawbreaker, and who may go to jail, just because our government did something it should not have done.

We ought to have a country in which people who care about due process do not find themselves so much as tempted to break the law, because our institutions do not put them in that position (except, I suppose, very rarely, due to some bizarre accident.) In that country, Diaz would be a better citizen than most, since he doesn't just generally obey the law, he knows and cares about its basic principles.

And we don't need to get into the pros and cons of taking things into one's own hands to say: the fact that he felt driven to do this, and not because he was (e.g.) overdramatizing things, but because the government really was doing something that was that bad, is a tragedy.

OCSteve, I think we have different ideas about the severity of the punishments. I was thinking more of... ack I can't even think of a word for it..... criminal punishments. You can lose a security clearance without even being found guilty of a crime. I think it almost goes without saying that his security clearance is done.

In terms of severity I was imagining something more along the lines of level 4--discharge, less than a year of prison time, possibly suspended sentence; level 3--definitely some prison time probably around a year based on severity; level 2--multiple years of prison time (I was imagining 3-8 based on various factors); level 1, quite possibly your whole life in prison.

No Katherine, I won't sue you. I actually do know where you are coming from. I think we are just looking at it from two different perspectives, different not rigth or wrong.

hilzoy, I think that what you are really trying to say is not that this specific situation is sad, although it may be. But for the country to have reached the point where somebody who, based upon his career choices, has shown himself to have respect for the law and yet feels he has to perhaps bend or even break that law because of things the government si doing is the really sad thing.

OCSteve, justification may not be a thing that is openly considered in any court of law, but it would be asking for humans not to be humans if it didn't enter their minds when assessing a case.

SebH:Diaz seems to be in the 4th section.

If it turns out that the info was indeed officially classified, I would accept a guilty verdict in the case (=leaking) but definitely not the excessive jail time.
I think this is a textbook example of extenuating circumstances.
On the other hand it would be a perversion of justice, if those who did try to withheld the leaked info were not prosecuted (and with the full arsenal of justice not just the slight slap on the fingers).

In short: they can put Mr.Diaz in a cell, if they also put Rummy against a wall*

*this shall not be construed as either an endorsement of capital punishment (in general) or a claim of sole responibility of the former SecDef.

Got to love military justice. Beat a prisoner to death or shoot him: zilch. No charges, in some cases no serious investigation.

Release the names of prisoners held and tortured for three years, names that should never have been kept secret to begin with: trial on charges that could put you away for 24 years.

I'm not advocating that Diaz not face any penalty at all. I'm asking people to look clearly at what message is being sent.

As far as I can tell, the documents in the prisoner abuse scandal that (at least initiaolly) became public through unlawful leaks include:

--The Taguba report
--Annexes to the Taguba report
--The first set of Abu Ghraib photographs
--The OLC torture memo
--The DoD torture memos
--Descriptions of Camp NAMA
--The CIA Inspector General's report on Manadel al Jamadi's death
--Descriptions of the death of the prisoner killed at the Salt Pit
--Descriptions of the CIA's "enhanced interrogation techniques," such as waterboarding, cold cell, and forced standing.
--Disclosure of the CIA prisons in Eastern Europe.

Ideally, there would be a way to lawfully disclose this information. As far as I know, there isn't. We did later get some other information as a result of Freedom of Information Act requests, voluntary disclosure, etc., but I'm not sure that anyone would have known to FOIA those documents if not for the initial, unlawful, leaks.

I could be wrong about some of these documents being classified & then leaked. I suspect not; I suspect that I'm overlooking a lot.

Then there are the documents that still aren't public. The famous OLC "techniques" memo, which explains exactly why waterboarding isn't torture. The

Obviously, it would be preferable for these things never to have happened at all. Given that they did happen, it would be preferable for there to be a legal means to get this information disclosed.

But they happened. And there isn't a legal means. And with the Congress and administration we had, there was no conceivable way to change the laws to fix that. In fact, there's still no conceivable way until 2009, and I'd be surprised to see a real change even after.

So: show of hands. Who thinks we're better off, as a country, because these leaks--taken in the aggregate--occurred? Who thinks we'd have been better off not knowing until January 2009, if ever?

If you don't think we're better off, are there any circumstances under which you think a leak is morally justified & would leave us better off? If this isn't the line, where's the line?

Of course it's possible to believe that we are better off, that the laws are unjust either as written or as applied, but they are still the laws and must be enforced. I may believe that myself. If that's the case, though, we basically rely on people to commit civil disobedience & risk destroying their careers and going to jail so we can have a semblance of open government and at least some restraint on the executive's ability to disappear people.

In this case, it looks quite possible that he will go to jail for longer than a number of people involved in far, far, far more serious crimes. Again, take a look at some of those links in the post.

Maybe the system must be upheld; maybe there's no other way. I'm not firmly convinced otherwise. But even if that is true, the system makes me want to throw up.

And I shouldn't even be sympathetic?!#? What kind of secret, exactly, would have to be leaked, and how severe could the sentence for disclosure be, before I could legitimately be sympathetic?

(As far as where I'd come down, btw--the three charges are disobeying a general order; conduct unbecoming an officer; and this espionage act business. I would probably vote to convict on the first & give a pretty damn lenient sentence.

If I were a prosecutor, this would probably not be the case I chose to pursue.)

Katherine: this strikes me as one of those cases for which prosecutorial discretion was designed. Likewise, jury nullification. (And I should say: I do not normally hold with jury nullification. When I have been on juries, I have always taken the idea that my role is to decide the facts, not the law, seriously. But there are limits.)

Katherine: Sure you can be sympathetic. I noted that IMO it is misplaced, and that holds. I feel that way because of my history and personal experiences, just as you feel the way you do due to yours. It is just two different worldviews.

Discipline is critical to the proper functioning of a military organization. Regulations have to be consistently enforced. It is true that there are bad apples and bad commanders, but as a general concept enforcing discipline and adherence to regulations is the foundation of the military. I can’t support Diaz getting a lesser punishment for his actions than someone else could potentially get for accidentally compromising classified information. The regulations are strict and the punishment can be harsh, but the importance of safeguarding classified information justifies that. And it simply can not be left to the soldier to decide that something really should not be classified, or he is justified in disclosing it due to whatever reason. People have given state secrets to the enemy because they really truly believed that they were justified in doing so. At Diaz’s level you simply don’t have all the information to make such a decision and no justification is valid.

Go after Bush, Cheney, the SecDef, the generals, etc. for improperly classifying this (and other) information to begin with. I’m on your side there. But I can’t justify letting Diaz off or accepting that what he did was in any way OK.

Your hypothetical willingness to go after the powerful is touching. What Bush administration officials, specifically, do you support indicting and/or impeaching?

re: "no justification"--how far are you prepared to take that? Say you found out that the the government was running death camps for civilians, and you lacked any lawful means of stopping it or making that information public. Still irrelevant?

I believe that hilzoy and OCSteve have hit the nail on the head here. As OCSteve notes, the military depends on discipline. A soldier doesn't get to decide if a classified document should, in fact, be unclassified; that's above their pay grade. But the Bush administration's insistence on overclassification (in fairness, I don't think this is limited to the Bush administration; the power to classify documents is just too tempting for a lot of people in my experience) places people in an impossible position.

We have laws to encourage people to do what is right. When the law and morality collide, what do we expect people to do? I am reminded of the E.M. Forster quote: "If I had to choose between betraying my friend and betraying my country, I hope I would have the guts to betray my country."

OCSteve: Discipline is critical to the proper functioning of a military organization. Regulations have to be consistently enforced. It is true that there are bad apples and bad commanders, but as a general concept enforcing discipline and adherence to regulations is the foundation of the military.

Which is why I'm a pacifist. Because it isn't just a matter of bad apples and bad commanders: it is fundamental and essential to military discipline that soldiers shall be able to commit gross atrocities without thinking they're doing anything wrong, because wrong has become not following orders.

because wrong has become not following orders

This is so wrong I don't even know where to begin.

"This is the saddest story I've read in a while:"

Wow, what a surprise! Katherine is more saddened by a story about a guy helping prisoners in Guantanamo, than our troops who where ambushed at night while trying to provide Iraqi's the freedoms that she enjoys.


So, how many of those does Trollificus get before he becomes ban-worthy?

Thanks for your contribution bril. I would like to encourage you to spend more time in a comments section where obnoxious trolling is encouraged. Perhaps WashingtonMonthly.com?

Phil and Sebastian's comments are more constructive than the one I was going to post.

Katherine: What Bush administration officials, specifically, do you support indicting and/or impeaching?

Specifically, I support impeachment of any administration official where a legitimate case can be made for "treason, bribery, or other high crimes and misdemeanors."

Scott Horton says (your link):
Holding persons in secret detention constitutes a jus cogens crime under international law, but it is also classified as a war crime under the Geneva Conventions and under United States criminal law—the War Crimes Act of 1996. The Department of Defense, under the documented direction of Secretary of Defense Donald Rumsfeld, decided to withhold the names of detainees seized in connection with the war on terror, including detainees seized in Iraq.

If true and provable then that seems like a good place to start.

Your hypothetical willingness to go after the powerful is touching.

Why the sarcasm? I assume that it is because when I mention impeachment (or holding admin officials to account) everyone assumes I am being sarcastic. Impeachment is kind of a mantra around here, yet when I advocate it folks assume I don’t really mean it. Well, I do. Most commenters here (and many other places) say “impeach BushCo” as casually as ordering a cup of coffee. I don’t say it casually.

how far are you prepared to take that? Say you found out that the the government was running death camps for civilians, and you lacked any lawful means of stopping it or making that information public. Still irrelevant?

To be comparable, you would have to find these death camps codified in Army Regulations: Army Regulations that have existed in one form or another for generations and that are readily available for public scrutiny.

OCSteve, I don't understand your point. Are you saying that the army regulations require secret detentions?

Your objection to any leniency for Diaz, as far as I can see, is based on his intentional exposure of classified information. That intentional exposure would be the same whether the information exposed was about secret prisoners, secret death camps, or secret songs on the president's iPod.

You've said in the past that you don't think impeaching Bush is reasonable & that even if he's committed high crimes and misdemeanors it'd just make a laughingstock of dems...but I'm more interested in the second question, which you don't appear to have understood.

I am not asking whether it is permissible to violate regulations creating death camps. I am asking whether it would be justifiable--or at least relevant--that you had violated the classification regulations if you did so because you discovered that the military was operating death camps; their existence and operations were classified; and if you had no lawful means of effectively stopping their operations or declassifying the evidence of their existence.

Your previous answers suggest that if you discover the army gassing civilians--you can report it through normal command channels and all that, but if that doesn't work, and the evidence is classified, then too bad. It stays secret, or you go to jail. And not only do you go to jail, but your justification for leaking the information is not even a major mitigating factor.

Obviously, this isn't a particularly plausible hypothetical; I'm trying to figure out if there are any limits at all to the argument you seem to be making.

To be comparable, you would have to find these death camps codified in Army Regulations

Whoops. I think I misinterpreted your question. If you meant would I violate regulations concerning the handling of classified material if that was the content of the material….

I can’t realistically answer that because I can’t envision such a scenario, it is just not realistic to me. But in general, I would file complaints with the IG, if no action was taken and I was an officer I would resign my commission and then go public myself. I would not mail it off to the HRC and keep doing my job helping to run the death camp.

cross posted...

But you see why I'm asking, right? Because once you're talking about war crimes, it doesn't seem like, e.g. torturing one prisoner to death instead of gassing a large number ought to be the determinative factor. (not that this case involves prisoners being killed, but some of the other leaks do & you didn't seem to consider that so relevant).

Your point about openly going public v. secretly leaking the info is valid--but before you left, would you take the documentary evidence so that people believed you?

I do see your point, but I think it is a stretch between Diaz and your hypothetical.

There may have been legitimate operational reasons for the classification. Off the top of my head, if you have Terrorist A, any information you get from him is more valuable, likely more actionable, if his cell/family/friends have no idea what happened to him. It’s best from an intelligence/operations perspective if he just disappeared off the face of the earth. If they know beyond doubt that we have him at Gitmo then the value of anything we get from him decreases. I’m not saying that was the case, I’m saying it could have been and Diaz would not have had a “need to know” that. It’s tougher to come up with a legitimate reason to classify the existence of a death camp.

Would you still approve of Diaz’s actions if there had been a legitimate operational need for the classification? What if we did get actionable intelligence from Terrorist A, but after Diaz disclosed the information that we had him; his cell changed their plans and successfully struck a different target? My point is that we know more now, but Diaz had no basis to make that call in Jan 2005.

On the other leaks – do we know the leakers? I didn’t refresh myself with each of your examples but in at least some cases the issue had been reported and internal investigations were underway when they leaked. If we don’t know the leaker or the classification of what was leaked etc. I can’t really compare them.

Yes if I was going to publicly accuse the Army of running a death camp I would take the documentation, knowing that they would still come after me even if I had resigned.

Would you still approve of Diaz’s actions if there had been a legitimate operational need for the classification?

OCSteve:

I read this question as posing a hypothetical premised on the government acting in good faith. I also fall off my chair laughing.

Is this some kind of joke? The government does not get the benefit of the doubt on these questions. And neither do individuals making the government's case, i.e., you. If you have actual evidence about actual operational needs for classification, by all means present them, but after all the years of bad faith and outright criminality, the government is not entitled to the benefit of the doubt.

I suppose in some cosmic sense it is unfair that Katherine gets to pose hypotheticals about the government committing war crimes and can be taken seriously doing so while the government cannot pose reciprocal hypotheticals without eliciting howls of laughter. Tough. Katherine earned that privilege by not acting like a wonton criminal and by not lying every time she opened her mouth. The Bush administration may enjoy the same privileges after it has acted in good faith for a few years.

KCinDC: or secret songs on the president's iPod

Now there is something that I truly hope stays classified, because I really really do not want to know.


Katherine: You've said in the past that you don't think impeaching Bush is reasonable & that even if he's committed high crimes and misdemeanors it'd just make a laughingstock of dems

True. At one point I said that impeachment would be political suicide for Democrats. At another point I said that if Bush truly lied us into war then Democrats (and Republicans) are shirking their duty if they do not impeach. More recently as more and more crap comes out I find myself more in the impeachment camp (although I do not believe it will happen, I more and more think maybe it should).

I’ve changed my mind on a lot of things over the past year or so. You’ll find lots of inconsistencies from me, especially on the war etc. Hell, one day I’ll say pull out all the troops now and the next I’ll think maybe the surge is working. And that is just this week (so far).

like a wonton criminal
As seen in The Fiendish Egg Drop Soup of Doctor Fu Manchu.

It's more like Terrorist 1 - Terrorist 550--they were concealing everyone's name. And the Supreme Court had ruled that they had a right to file a writ of habeas corpus, but the gov't nevertheless wouldn't release their names, making it impossible to *actually* file a writ of habeas corpus unless their families had contacted you or another prisoner had connected you.

And I'll bet you anything Diaz knew this. I mean, it was completely obvious what was going on then even to me, and that was before I knew 1/10 as much as I know now about GTMO. He was actually down there.

I wonder if part of the reason this bothers me is that right around the same time--winter/spring 2005--I realized that a prisoner was at GTMO, and as far as I knew I was the only one who realized it. Muhammad Saad Iqbal Madni, his name was. Rendered to Egypt; apparently electrocuted and God knows what else and still suffering from injuries. The most recent newspaper story on his rendition said that he had never been heard from since his rendition and was presumed dead--I figured out, from an account from released GTMO detainees, that he had actually turned up at Guantanamo. They called him "Saad al Madini" instead of "Muhammad Saad Iqbal Madni" but the other details matched--had to be the same guy.

As far as I knew I was the only person in the world who knew that. I really didn't know what to do. I think I actually emailed Barbara Olshansky, but she had no idea who I was. I emailed a couple of reporters who had written on the case, but got no reply. I talked to one of my professors, who was on the board of Human Rights Watch, & he told them.

It turned out that some reporters and NGOs had already figured this out but not confirmed it, and he probably had Red Cross access anyway which was more to the point.

The lawyers never did manage file a habeas petition on his behalf, as far as I know. I'm not precisely certain why. He's apparently no longer totally sane & had made a number of suicide attempts--it could be that he didn't agree to be represented. It could be that they couldn't get a next friend petition in time. No idea.

I just remember feeling freaked out & somehow responsible during that time. And that was one guy, not hundreds.

Anyway--look, do me a favor, let's not kid ourselves about the Bush administration's motives. I suppose it COULD make up some legitimate reason why they've redacted all the former CIA prisoners' torture allegations out of their CSRT transcripts--after all, I haven't actually read the redactions; how can I be certain enough to make the call? You can't verify with utter certainty that the classification is illegitimate until you know what was classified and you're in the "need to know loop". But in reality, we know damn well what they're redacting and why.

I don't have much to add, but...

Wow, Katherine. That must have been intense and scary. I'm glad you were able to do something with the insight, even if it seems to be lacking in follow-up.

And I agree very strongly that it matters both why someone attempted to disclose information outside the usual procedures and what was disclosed. This is Nuremberg stuff: the chain of command is never absolute, and the military's regulations are justified only in the service of larger causes and conditions.

Katherine: Anyway--look, do me a favor, let's not kid ourselves about the Bush administration's motives

Agreed. That was not my intent, and I stressed the MAY, the hypothetical. My point is just that when Diaz took it upon himself to disclose this information, due to long standing and time tested “need to know” principles, he had no basis to assume he had all the relevant facts to make such a decision, and he knew that. To paraphrase Rummy, “need to know” is one of the known unknowns. If he had a clearance then he knew that he would only see those pieces of classified information that he needed to do his job, and that he would never know the full picture. And that is something he knew when he made the decision.

OK, enough of me for one day.

The thought, “I’m justified in intentionally breaking this regulation because…” should never enter a soldier’s head (note that this is not the “illegal order” scenario).

What if it is an illegal order scenario?
Is the US legally obliged to make the names available?
Why were the names being withheld?

Go after Bush, Cheney, the SecDef, the generals, etc. for improperly classifying this (and other) information to begin with. I’m on your side there.

Thanks, but this is not to the point, because in a million years, it won't happen.

So: show of hands. Who thinks we're better off, as a country, because these leaks--taken in the aggregate--occurred?

In the particular cases you name, my hand is up.

Thanks -

Off the top of my head, if you have Terrorist A, any information you get from him is more valuable, likely more actionable, if his cell/family/friends have no idea what happened to him. It’s best from an intelligence/operations perspective if he just disappeared off the face of the earth.

There are various reasons why it can be far more convenient for the government to ignore human rights issues.

Consider prosecution of organised crime members, where witnesses disappear before trial and we wind up with expensive life-disrupting witness protection programs after trials. It would be far better for the government if the witnesses could give their testimony anonymously and the defense never hears anything about it. And we should be able to lock up potential Mafia hitmen just because we think they might be Mafia hitmen, without trial.

But we don't do everything we can to make it convenient for the government. We follow laws that are intended to give citizens a decent chance to prove they're innocent if they happen to be innocent. Even when the government thinks you're guilty of something, you still get your day in court, your chance to prove you're innocent after all.

This idea that the US government should break our own laws because that gives it better results is, well, a bad idea. And the idea that we should break the war crimes laws because breaking those laws helps the war effort likewise.

This is a perverse argument. Like, imagine that israel had a war with syria, and israel used nukes. And their justification was "It's better from a strategic perspective if Damascus just vanished off the face of the earth.". I hope our acceptance of this reasoning would be unenthusiastic and even strained. Because of course if people didn't think war crimes would give them any military advantage then there wouldn't be any big need to forbid them, now would there?

So: show of hands. Who thinks we're better off, as a country, because these leaks--taken in the aggregate--occurred?

I think we're better off. But we'd be even better off if those secrets that got leaked hadn't existed in the first place.

If anyone REALLY wants to be depressed, go watch the Republican candidates (other than McCain) here. ("Double Guantanamo" -- like some sort of board game, only with human lives.)

Could've been worse from Romney. "Gosh, I love Guantanamo. From its barbed wire to its gleaming fluorescent lights they never shut off, from its lemon chicken to its restraint chairs. But most of all, I love its people, and their resolve in the face of the terrorists campaign of assymetrical warfare...."

It bears repeating that none of this would be an issue if the government had given all detainees prompt hearings according to established procedures. This entire situation exists because of deliberate breaking of law, treaty, and policy. While military justice doesn't have the same freedom to notice that as we do, the rest of us are at liberty to say that it should weight heavily in consideration. When the whole damn situation is illegal and deceptive, it's unsurprising that pieces of it are, too, and indeed it would be a little surprising if any important piece of it were entirely with pre-Bush standards of propriety.

The notion that the names of run-of-the-mill prisoners was ever really a secret from anyone but US citizens is somewhat farfetched. Depending on where and how the prisoner came into custody, plenty of people knew. More knew as DOD released prisoners -- hundreds of prisoners -- many of whom are surely instructed to get in contact with parents and wives of remaining prisoners.

We hooked up with one of our guys because his sister got a postcard from him, through the ICRC, in mid-2004. Or maybe earlier, I don't remember. To the extent that anyone in AQ cares whether someone is in Gitmo or not -- and there's no reason for them to care about shepherds, schmoes, or wannabes -- that information has been out there. Where it wasn't, was in the hands of people trying to vindicate the rule of law.

Katherine, that prisoner would have been a party to the Doe case, which included everyone without a case in his own name.

didn't the Doe case get tossed even before the MCA because of lack of proper next friend blah blah blah?

Katherine's 12:07 is money.

OCSteve:To be comparable, you would have to find these death camps codified in Army Regulations: Army Regulations that have existed in one form or another for generations and that are readily available for public scrutiny.

Not that I believe that the US is currently running industrial death camps but it could as well be in the regulations. The part dealing with the "methods that are not torture just look that way" is for example officialkly classified, so "the terrorist don't know what to exactly expect".

OCSteve: I’ve changed my mind on a lot of things over the past year or so. You’ll find lots of inconsistencies from me, especially on the war etc.

Yes, but that's because you're a reasoning, adult, intelligent human being. Changing your mind on the basis of more complete information becoming available may lay you open to the charge of being a "flip-flopper" in the MSM if you're a Democratic Party candidate for President, but elsewhere and otherwise, just makes you look like a sensible and respect-worthy person.

Would you still approve of Diaz’s actions if there had been a legitimate operational need for the classification? What if we did get actionable intelligence from Terrorist A, but after Diaz disclosed the information that we had him; his cell changed their plans and successfully struck a different target? My point is that we know more now, but Diaz had no basis to make that call in Jan 2005.

Huh. It was obvious from publicly-available information that the US government was not running Guantanamo Bay lawfully by July 2003: in January 2005, Diaz had every basis to make the judgement call that the prisoners identities were being classified to cover the commission of mass criminal offenses by the US government against prisoners of war and kidnap victims.

Typo. That should have been "by July 2002", when - had the US government been intending to run Guantanamo Bay lawfully - they had had plenty of time to muster competent tribunals to show that the prisoners held there were not legally entitled to the rights of prisoners of war, as they were required to do by Geneva Convention.

It's interesting--at this point I think, though it's not possible to be certain, that the Bush admdinistration isn't currently using waterboarding, and while they're not serious about closing GTMO Gates certainly isn't going to be doubling it. I wonder if in future debates the moderators can get them to try to outbid Bush & each other on other abuses of executive power: "Would you have gone to the Attorney General's hospital room when his deputy wouldn't authorize the terrorist surveillance program?" "Brit, I'd have done better; I'd have signed his name myself if he was incapacitated & that's what it took to protect the American people!" (crowd applauds, does the wave.)

Of course they weren't POWs. There was no war, the WoT was only a metaphorical war.

They weren't even civilian victims of an occupation. The Geneva Conventions didn't apply to them unless they were iraqis or afghans. We were not at war with saudi arabia etc. So if for example we kidnapped a british citizen, or a chinese citizen, and held him in a torture facility, in theory the british government or the chinese government should have something to say about it. We would be obligated to tell them about their citizen that we'd found, why we thought he was guilty of something and what we were doing about it. They might demand to speak to him, to see the evidence, and they might object, and it would go from there.

It's even possible that this was done, that for each prisoner we went to the saudi government, the australian government, the british government, etc and told them who we had and what we were doing to them, and all those governments said it was just fine. Secretly, of course.

It wasn't about POW status. It was about how we're obligated to treat citizens of countries we aren't at war with. The thing with iraqi and afghan citizens though was about Geneva conventions and how we treat civilians of nations we are at war with.

J Thomas, any person who "having committed a belligerent act and having fallen into the hands of the enemy" has the right to the protection of the Third Geneva Convention until a competent tribunal shows that that person is not entitled to it. But, until all prisoners have been individually examined by a competent tribunal, they are all entitled to the rights of prisoners of war at minimum - which obligation the US government has publicly and ostentatiously refused to comply with since October 2001.

As far as my knowledge of law goes, the only legal categories that allow to detain/intern/imprison/keeping from running around freely/whatever somebody are:
1. Prisoner of War/interned enemy alien civilian
2. Suspected or convicted criminal
3. Persons legally declared mentally unfit
Each of these categories carries certain rights and obligations with them that disallow certain things.
Criminals (and I consider terrorists criminals) have a right to due process independent of citizenship*.
POWs(and related) have a right of review and certain other rights.
The mentally unfit have (to my knowledge) a right to a legal "guardian", i.e. someone who takes care that they are treted according to law.
The newly invented category of unlawful combattant has, in my view, the sole function of avoiding these obligations.
Personally I see no true difference to the original° Nazi concentration camps (that were extra-legal detention facilities**) or the Schutzhaft principle (preemptive imprisonment "just to be sure")

*Yes, I know that there are people who deny that categorically.
**There were typical cases of people acquitted in court and then brought in to the camps
°i.e. not death camps

From the http://www.truthout.org/docs_2006/051507T.shtml>NY Times

Washington - The military system of determining whether detainees are properly held at Guantánamo Bay, Cuba, includes an unusual practice: If Pentagon officials disagree with the result of a hearing, they order a second one, or even a third, until they approve of the finding.

These "do-overs," as some critics call them, are among the most controversial parts of the military's system of determining whether detainees are enemy combatants, and the fairness of the repeat hearings is at the center of a pivotal federal appeals court case.

That is probably what they call result-oriented [/sarcasm]

Just a quick comment regarding the responses to OCSteve. Jes, you hit it on the head when you said he is "a reasoning, adult, intelligent human being."

As some have pointed out in the past, I hope that I can be as open to countering points of view when the facts are presented as he is.

Also, he is coming from a very specific perspective based upon his experience in the military. And from that perspective, he is correct. Noticde that not once in this thread has he condemned Diaz. He has merely pointed out that Diaz should have understood the possible consequences of his actions, and therefore be prepared to accept them.

My one quibble with him is the thing about accidently disclosing classified information, or losing it or whatever. If one is in a position to handle classified information, they should be capable of avoiding those accidents. People who have misplaced laptops with classified information should be held as responsible as someone who disclosed classified information on purpose.

OCSteve and I have had disagreements in the past, but I can honestly say that he has always been willing to listen (read) what I or others have had to say and has never gotten sarcastic or snippy.

Both sides could use a lot more people like him.

Yes, it's almost bizarre how much he listens. ;)

"J Thomas, any person who "having committed a belligerent act and having fallen into the hands of the enemy" has the right to the protection of the Third Geneva Convention until a competent tribunal shows that that person is not entitled to it."

Technically this isn't correct by my understanding. If there is any doubt whether or not the person was an unlawful combatant, they have a right to a competent tribunal. But I'm not going to get to worked up over it any more because it is crystal clear that many (if not a large majority) of those classified as if there were no doubt were actually not guilty/any kind of combatant. I should have listened to my normal procedural concerns about government.

J Thomas, any person who "having committed a belligerent act and having fallen into the hands of the enemy" has the right to the protection of the Third Geneva Convention until a competent tribunal shows that that person is not entitled to it.

Jesurgislac, I know that my interpretation is not usual, but I believe it is correct and I want to explain it.

Let's consider a saudi al qaeda member before the US invasion of afghanistan, to factor out some of the useless complexities. The USA was not at war with anybody at the time, though we talked metaphorically about being at war with al qaeda and with terrorism. I say the geneva conventions did not apply, other conventions applied.

You pointed to the third geneva convention, which says:

----
Art. 2. In addition to the provisions which shall be implemented in peace-time, 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.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
----

The first phrase could be interpreted to say that all of the convention applies to everybody in peacetime. I don't make that interpretation. Then it says that it applies to war between governments, and to occupation. Neither of those was the case. We were at peace and we were not occupying anybody.

In that context, people who had assisted with 9/11 were criminals and not warriors, and when we caught them they should have all the rights of suspected criminals and not the rights of POWs.

If a saudi man played a supporting role in robbing a bank in the USA and he was later found in italy, and US agents kidnapped him without the permission or knowledge of the italian government, and detained him secretly, and tortured him, it would not be a matter for the geneva convention. Which is not to say that it would be legal by US or international law.

If the bank robbery degenerated into violence, we would not treat the foreign bank robbers as POWs until they got a tribunal that determined whether they deserved that status. I think. Would we?

Since we are not at war with saudi arabia, by rights we would be obligated to tell the saudi government what we were doing to their citizen, and they could complain through diplomatic channels, and if there was no resolution it might lead to breaking off diplomatic relations and perhaps eventually a declaration of war etc -- and then the geneva conventions *would* apply.

The idea that accused foreign violent criminals deserve a new status of "illegal combatants" in which they have no rights is very new and I think false. They have all the rights of accused violent criminals, which I believe in most ways are greater than the rights of POWs. It's true you don't have to let them keep their helmets or gas masks or insignia or military ID, and you can try them in a civilian court for doing murder or sabotage that would be just par for the course for soldiers. But you don't get to set up quick military tribunals for common criminals from friendly nations, either.

The Geneva conventions are specifically for war between nations. So our hypothetical saudi would not be a POW any more than a US civilian who robbed a bank in kenya and got caught would be a POW. The third convention includes more than the quote you gave from article 5. It lists who it can apply to. They weren't soldiers or former soldiers under occupation. A saudi bank robber or al qaeda member is not a member of a saudi militia -- the saudi government was against them and there was no war. They had no ID cards from the saudi military. They were not merchant marine or civil aircraft crews, and of course no war. They didn't take up arms to resist occupation. They weren't interned by a third party. The kidnapped saudi didn't fit any of the criteria for POWs except that we captured him.

The fourth convention is about protection of civilians.

From Art. 4: 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.

From Art. 11: The provisions of this Article shall extend and be adapted to cases of nationals of a neutral State who are in occupied territory or who find themselves in the territory of a belligerent State in which the State of which they are nationals has not normal diplomatic representation.

See, they ought to get better protection when we aren't at war with their nation than they get from the 4th convention.

The administration has somehow done a sleight-of-hand where they say we're at war with terrorists soo suspected terrorists don't get civilian protections, and they aren't really a nation and don't follow the conventions of war themselves so we don't have to give them military protections either. People generally argue that we have to give them POW status, but I think that's wrong. We have to give them civilian status. They are accused of committing crimes, not acts of war.

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