Just Wars and Detainees

by Robert Mackey

A post I did a few days ago on the argument for manned nuclear bombers, much like any freewheeling discussion on most blogs, soon turned to an interesting cul-de-sac of discussion on the nature of warfare, those whose job it is to both fight and conduct warfare (two quite different things), and what defined a combatant and non-combatant.  I'd like to address the latter and will discuss the former over the next few days.  Comments are always welcome!

The idea of just war, as most of you are well aware, began in the early Christian Era in the West, by old St. Augustine.  No need to ride that old pony for much, other than to note that the idea of war for something other than greed is a relatively new concept in human history.  Of course, like any other good idea, all it takes are a few greedy men to find the loop holes and discover new and interesting ways of making a pacifistic religion into a tool for conflict (see the Crusades and the Thirty Years War for details).

My doctoral work, along with my first book, The UnCivil War, focused several chapters on the outgrowth of the just war concept--the treatment of captured prisoners of war.  In my case studies, I found that officers in the Union Army ran into a very large, and very difficult problem at the beginning of the conflict:  What do you do with captured 'unlawful combatants?'  Federal troops were capturing guerrillas who ostensibly were part of the defense forces of the Confederacy, but did not possess uniforms, flags, and other accouterments of conventional armies, and tended to fight using the method of the irregular warrior--ambush, hit-and-run raids, and waylaying small groups of stragglers--all of which were anathema to the Union Army leadership.  If this sounds familiar to anyone who has happened to keep track of world events since 2001, good for you--it is literally the same problem and issue.  How do you define a combatant and a non-combatant?

The solution was found in Lieber's Code, published in the Union Army as General Orders Number 100, in 1863.  Francis Lieber was the most famous jurist of his time, and in a letter to General Henry W. Halleck, outlined the concepts of the legality of war, the status of combatants, and the responsibility of a capturing nation to provide for prisoners.  Lieber was a Unionist and saw that the Civil War was an illegal war, in the fact that that the Confederate States had no right to secede.  Yet, he did not allow that factor to determine the combatant status of the 'detainees.'  In fact, he pressured Halleck (and President Lincoln) to treat captured Confederate soldiers as prisoners of war, when under international law and practice of the time they could have been legally executed as rebels.  For those of you who dismiss such activities, I'd like to point out the punishments given out to Irish rebels in the uprisings of the same era, by the much more 'civilized' British government, not to mention the British reaction to the Indian Mutiny. 

General Orders 100 basically formed the basis of the law of land warfare, and later the Hague and Geneva Conventions.  It defined different categories of armed combatants--from legal combatants (uniformed soldiers), legal non-combatants, and a new category of irregular soldiers, the partisan.  For those of you who remember old newsreels (or watch the History Channel), you can see partisans operating under the Free French in during the liberation of Paris in 1944.  The wearing of an armband depicting the Cross of Loraine and the Tricolor, and the carrying of arms openly, meant that this person was a legal combatant, and eligible for treatment as a POW.  Strangely, even some German units recognized this (while others, such as the Waffen SS, would shoot anyone if given the chance, even uniformed Allied POWs, such as the hundreds of captured Americans executed at Malmedy in 1944) and treated them as POWs.  The result of Lieber's Code, the idea that a person captured on the battlefield has the right to be protected, brought to an end the ancient practice of enslaving or murdering your captives.  This, as much as the concept of Just War, brought  some semblance of sanity to the conduct of that most insane human activity, warfare.

Of course, the Bush Administration happily ignored nearly 200 years of jurisprudence on the subject and invented an new category, the "illegal combatant," to allow them to hold "detainees" at GTMO indefinitely.  As an aside, I was on the Joint Chiefs of Staff during that time, and gave a copy of my book to one of the Office of Secretary of Defense lawyers working the issue.  I don't think it did any good, but we all do what we can at times.

What does any of this do the concept of Just War? 

The idea of Just War was based on Christian theology, aimed at ending conflict between Christian states in Europe.  Fighting the unbeliever, the infidel, or the sectarian was quite all right under that concept.  The rise of liberalism, secularism and popular democracy brought into question the very idea of legal conflict.  Men, not gods or their priests, suddenly had the ability and the responsibility to make rational judgments on the idea of what is right or wrong in regards to warfare.  While nationalism and imperialism did (and still does) much to encourage conflict between states, rational human beings took a great step forward to maturity by saying "we will not execute those who surrender."

As Guantanamo Bay closes down, let us not forget that these 'detainees' are one of two things--they are either prisoners of war, combatants taken in arms against the United States and its allies, or they are criminals under international law, guilty of crimes against not only the Coalition Forces, but against the nation where they were captured or even against the international community as a whole.  If they are the former (POWs) then they must be protected under the Geneva Convention.  This means they cannot be tried for 'war crimes' conducted while under arms.  They cannot be paraded for public view and humiliation. They cannot be denied their religious practices. They cannot be interrogated after processing and internment. Lastly, they must have a process for repatriation back to their nation of origin.

If they are determined to be criminals--what has been the basic argument of both the Bush and Obama administrations--they must have their day in court.  If the crime was against US forces, they must be given the entire body of US laws to protect their individual rights. A right of trial by jury. The right to face their accusers. The responsibility of the government to present clear evidence.  The right to appeal and to have adequate counsel.  If the crime was committed against or in another country, then that country has the right to try them, just like we would do with any normal crime (e.g., extradition).  If the crime was against the international community, then use the Hague Court for the trial.

Regardless, the concept of Lieber's Code still holds true--the capturing nation must guarantee the safety and protection of the captured combatant at all costs.  It is the very basis of international law and treaty, and the release of a suspected 'terrorist' is nothing in comparison to the long term loss of one of the few successful safeguards against the horrors of war.

Comments

[Dick]

They must be one of (at least) THREE things. They may be completely innocent, having been captured in a general roundup, or by bounty hunters, or ...

[Point]

"If the crime was committed against or in another country, then that country has the right to try them, just like we would do with any normal crime (e.g., extradition). If the crime was against the international community, then use the Hague Court for the trial."

I think I see the issue here:

If a (accused) crime is committed in another country, but against the United States -- by, say, being a key member of an international criminal organization that conspired in carrying out said crimes -- that would seem like being "against the international community".

Which would make the Hague preferred, but for our refusal to join the ICC.

[McKinneyTexas]

Where to begin? The idea of a 'just war' didn't begin with St. Augustine--he wrote the book on it. The Crusades as an 'unjust' war is purely a matter of subjective viewpoint: Islam spread exclusively at the point of the sword beginning with Mohamed and continued until stopped, finally, at the battle of Tours and then for centuries up through the Balkans. The Crusades, at least in original concept, were intended to reclaim land conquered by Islamic armies.

As for the newness of war being fought for something other than greed, I suppose it all depends on what you mean by greed. The pre-history and history of early Europe is the history of succeeding waves of tribal movement from east to west. I suppose greed can be remotely considered synonymous with survival, in that if a tribe is displacing another tribe to ensure its own survival, then the displacing tribe is acting greedily, taking something away from someone else. However, I would say duress is the more accurate term and self-defense fairly describes the tribe fighting to hold what it has. Greed or other base motive? Not so much.

Leaping over many other debatable points, the choice is not prisoner of war or criminal. Conspiring in a foreign land to commit mass murder on civilians is a crime only in a very broad, nonspecific sense. As Mr. Mackey surely knows, penal statutes are narrowly and strictly construed. There isn't a catch-all statute that authorizes the criminal prosecution of terrorists. More to the point, however, there is no treaty, no law and no reason why Osama Bin Laden should have the benefits of US domestic justice. When a small band of German spies were landed on the east coast during WWII, all but two were tried by military tribunal within days and hung. They were not accorded the protections of domestic civil rights. The idea that the US is powerless to act against Al Queda unless it can prove guilt beyond a reasonable doubt subject to and in conformity to the Federal Rules of Evidence and Criminal Procedure is just bizarre.

[Bob Mackey]

@McKinneyTexas--
Interesting points; I would add that the German saboteurs were 1) turned in by their own compatriots, and 2) captured out of uniform. Spying/etc. is somewhat different under both US and international law when it comes to punishment. Spies caught out of uniform can be tried and executed; technically they give up their protections by giving up the uniform.

The US is not powerless against AQ and its affiliates, but can do so without secret prisons or extra-legal processes. OBL should be tried--publically--for his crimes if he is ever captured. The American public has the right to see him tried and punished for his admitted crimes.

By treating terrorists as soldiers, all we are doing is giving them what they want--legitimacy. Use the legal system to send terrorists to prison; it reinforces our legal system and international law, and delegitimizes the terrorist. Combatants captured on the battlefield are not automatically 'terrorists'--this is something even the Bush administration admitted when it released nearly 700 detainees before the 2008 election.

Now, having actually worked this issue from the inside, I can honestly say that a lot of the people left at GTMO are bad people. But being a 'bad' person means nothing if you don't have evidence of a crime. If we have evidence, we prosecute. We don't torture or hold until the end of time. That is just as wrong as the terrorist act.

We need to quit watching James Bond movies and 24 to think that if we don't torture we somehow allow Dr Evil or OBL to set off a nuke in New York. That sort of thing has never happened, and will never happen--that just isn't how terrorist groups work. If someone is captured, they disperse, change email addresses, and so on to cover their tracks. The "we have to torture because we only have 6 hours until the bomb goes off" is a figment of the imagination of spy novel authors and TV producers. It never happens in real life.

So, outside of that, what it the justification for torture? Revenge? Ok, welcome to the Middle Ages.

[Point]

"The idea of a 'just war' didn't begin with St. Augustine--he wrote the book on it."

Well, if you're counting Cicero, it should be noted his notion of just war has a lot less in common with our modern notion than Augustine's.

[Point]

"We need to quit watching James Bond movies and 24 to think that if we don't torture we somehow allow Dr Evil or OBL to set off a nuke in New York."

Whoa, whoa, whoa -- Bond ain't Bauer. From what I remember, there's virtually no torture in any bond films*.

*OK, one in QOS, but that was more "this stuff happens" than "this stuff is necessary -- or even helpful, really"

[Bob Mackey]

@Point

Hey now, don't forget Goldfinger--"You expect me to talk, Goldfinger? No, I expect you to die, Mr. Bond."

Of course, watching the 1970s Bond movies was torture of a different kind... ;)

[Marty]

"It never happens in real life."

Never? I find that hard to believe. Maybe the exciting chase scenes and dashes through shopping malls to get to the hidden bomb in the back of some key secret site are silly, timelines associated with terrorist attacks and teh quality of any intel gained seem reasonable.

More important, torture after the first 48 hours is certainly silly because the dispersal has taken place. But in the first six hours you might find out something you can use, or did we bomb in Yemen after receiving the intel several days/weeks earlier?

There is no "just" war, there is just war. It is at best a short tern deterrent to allow diplomacy to work and at worst a constant state of being that defines whole societies and generations. The necessity of war doesn't make it "just", it makes it necessary.

[Jesurgislac]

Marty: Never? I find that hard to believe.

That says more about you than it does about the real world, though.

But in the first six hours you might find out something you can use

Yes, it's just possible that one of the torture victims might blurt out a useful fact in order to stop their captors hurting them. Unfortunately - such is the nature of torture - this useful fact is unlikely to be recognized as such because the nature of torture is that it gives the torturer the answers the torturer wants. If you're actually wanting to find out stuff you didn't know - and didn't know you didn't know - then torturing your prisoner is not only evil and criminal, it's foolish.

If of course you want "intel" that confirms what you wanted to do in the first place, torture is the way to go: you can justify an attack you wanted to make by pointing out that under "harsh interrogation", or some such euphemism, a prisoner provided the corroborating information that justified the attack.

, or did we bomb in Yemen after receiving the intel several days/weeks earlier?

Most likely, bombing Yemen seemed to be the right thing to do, and information gained by torture was used to justify doing so after the decision had been made.

Mother Jones just asked me to send Obama an electronic Christmas card, so I sent him one pointing out that now he's a war criminal.

[Bruce Webb]

Well a small point.

Who ever suggested that Britain was 'civilized' compared to the U.S. in the nineteenth century? The British government freely used its troops between 1790 and the 1840s to often brutally crush and and all efforts to pursue democratic outcomes and economic justice, trade unions and collective action generally were capital offenses only mitigated somewhat by juries refusing to convict.

Prior to the Reform Act of 1867 only one in five adult males had the right to vote in England and only two in five after, full manhood suffrage did not come until 1920. Britain's main claim to 'civilization' was its early ban on slavery but even at that they only beat the U.S. by thirty years plus the British domestic economy never relied on slave workers to start with.

And those 'civilized' English were if not inventors certainly the popularizer of both the concept and 'Concentration Camp' in the Second Boer War. From Wiki:
"Finally, beginning in March 1900, the Boers engaged a protracted hard-fought guerrilla warfare against the British forces. This marked the beginning of the third phase of the war. It lasted a further two years, during which the Boers raided targets such as British troop columns, telegraph sites, railways and storage depots. In an effort to cut off supplies to the raiders, the British, now under the leadership of Lord Kitchener, responded with a scorched earth policy of destroying Boer farms and moving civilians into concentration camps.[7]
The campaign had been expected by the British government to be over within months, and the protracted war gradually became unpopular especially after revelations about the conditions in the concentration camps (where tens of thousands of women and children died of disease and malnutrition)."
The following image not for the faint: http://en.wikipedia.org/wiki/File:LizzieVanZyl.jpg

Maybe somebody should have told Lizzie about Just War Doctrine. And civilization for that matter.

[ral]

The XKCD take on that Goldfinger scene.

[CharleyCarp]

The advantage of a trial is that it sorts out the willing henchmen of AQ from those who were either never involved with it, or were trying to get away from it, once its true nature was revealed to them. People who don't want trials -- and you can see a couple of them in the WPost today -- don't want to engage in this process. For fear that their credulity might be exposed? Or their amorality?

[Eric Martin]

But in the first six hours you might find out something you can use, or did we bomb in Yemen after receiving the intel several days/weeks earlier?

Well, one would hope wer're not in the habit of torturing our own intelligence agents and/or assets and informants.

I mean, why would a CIA field op be tortured by his superiors after he recommends an airstrike? Or, for that matter, why would they swoop in and torture an informant/asset in the field for doing the same?

[Bob Mackey]

@Marty--Good intel builds up over weeks of hard work. It is never an admission ala 24; it is a massing of information that gives you a decent chance of doing the most damage to your opponent. I've spent a lot of my career looking at 'raw' intelligence...and it is always noted as so. Good analysis wins, not knee-jerk reactions to 'perfect' intel given by a person being tortured. I'm sure the Yemen strikes came after months of information gathering, etc. If I was being tortured, first thing I'd do is tell my captors that the entire movement is being run out of my ex-wife's house. A JDAM later, I no longer pay alimony.

@Bruce W--The Brits were quite sure that the cousins over the pond were fairly uncivilized. I think most of them still are ;)

@ral--awesome.

[Hogan]

The Crusades, at least in original concept, were intended to reclaim land conquered by Islamic armies.

"Reclaim" for whom? Not for the people who lived there.

[Bob Mackey]

@Hogan--I think you can only add the late wars (Ottoman Turk vs. eastern/central Europe) as real 'reconquest' campaigns. The Turks didnt own Constantinople or eastern Europe, but did conquer them. Of course, no real 'crusade' was proclaimed for those wars...instead the West just got rid of their eastern Christian rival and traded with the Turks...

[wonkie]

Who said the British were civilized? They did. Or, more accurately, some of them did. It was part of the justification for empire for the British to see themselves as more civilized. The White man's Burden, etc.

Our American version of that is to see ourselves as more democratic, free, just, the city on a hill, the world leaders in the promotion of freedom, etc.

That doesn't mean that our foreign policy under various administrations has consistantly promoted freedom. Mostly it just gives us an useful illusion for rationalizing policies which otherwise would not be acceptable.

Which gets back to that concept of "just war": apparently we have advanced enough culturally that a set of illusions is necessary to cover up real motives and consequences.

Which is progress of a sort.

The situation in regard to the prisoners at Gitmo does put our national self concept as the promoters of freedom on trial.

[russell]

When a small band of German spies were landed on the east coast during WWII, all but two were tried by military tribunal within days and hung. They were not accorded the protections of domestic civil rights.

The small band landed in two groups on 6/12/42 and 6/14/42. Six of them (out of eight) were in fact executed (electrocution, not hanging) on 8/8/42, almost two months (not days) later. The remaining two were given lesser sentences (life or very long jail sentences) in return for having turned themselves and their companions in to the FBI.

The initial assumption was that they would be tried in ordinary civil court, however the trial was moved to military tribunal at the insistence of Roosevelt and Hoover, who wanted to preserve the appearance that they had been captured through crack FBI casework, rather than through having surrendered. If it had been possible to prevent public disclosure of how the men were captured in the context of a civilian trial, it would likely have never been handled anywhere else.

It was by no means clear that the use of a military tribunal was legitimate. It required a more or less emergency session of the Supreme Court, driven by a habeas petition submitted by the saboteurs' counsel, to establish whether the use of a tribunal was legitimate. The decision was ex parte Quirin.

The decision was unanimous, but the court was in fact far from of one mind in their opinion. Contemporary legal opinion was likewise far from unanimous in supporting it. A later incident (1945) involving German spies captured after infiltrating the US was handled by the JAG and simple military court, rather than a presidentially appointed military tribunal.

Quirin, of course, was used (and abused) by the Bush OLC in the various opinions they pulled out of their collective behinds during W's tenure in office.

So, long story short, you've chosen a very bad example to make your point.

[Bob Mackey]

@russell-
In addition to the reasons you note, the two 'survivors' of the German foray basically turned in all they could to escape a death sentence. Their information helped the US and UK close down the German spy network in the US during the war. This is one of the reasons that a 'secret tribunal' was held--due to counterintelligence reasons, much like many of the trials of the same sort of thing were done in the UK (see Masterman's excellent book, The Double Cross System).

[Carleton Wu]

The Crusades as an 'unjust' war is purely a matter of subjective viewpoint: Islam spread exclusively at the point of the sword beginning with Mohamed and continued until stopped, finally, at the battle of Tours and then for centuries up through the Balkans. The Crusades, at least in original concept, were intended to reclaim land conquered by Islamic armies.

And giving it back to the people who'd held it before? Nope. So you're claiming that a just war involves taking territory from someone who didn't hold it at The Dawn Of Time. Or something.
Thus, Hitler's Sealion plan was a just war- taking Britian back from those evil Normans. The Japanese were also waging a just war against the United State's occupation of North America, taken at the point of the sword from it's Native American occupants (who themselves almost certainly displaced other populations).

The idea that the US is powerless to act against Al Queda unless it can prove guilt beyond a reasonable doubt subject to and in conformity to the Federal Rules of Evidence and Criminal Procedure is just bizarre.

An excellent point- it is bizarre, which makes me wonder why you would suggest it. Even those arguing here against eg the recent missle strike in Yemen argue on the practical basis of cost-benefit, not that we have no right to strike at AQ targets sans trial, sans jury, sans domestic legal basis.
Tasty, tasty straw.

[Snarki, child of Loki]

In US history, I think the justification for treating POWs fairly can be traced back to George Washington.

When the Brits were summarily hanging captured Americans as rebels, captured Brits (and Hessian mercenaries) were treated fairly well, better than what passed for standard treatment at the time.

One story (and perhaps it's only a story) goes like this: Hessians captured in the battle of Trenton were boarded with Amish families. At least some of the Hessians subsequently decided that they liked America, and rejoined the war on the American side. Afterwards, they settled in the US.

[Marty]

"In addition to the reasons you note, the two 'survivors' of the German foray basically turned in all they could to escape a death sentence. Their information helped the US and UK close down the German spy network in the US during the war."

I am confused why they would be given long sentences after turning themselves in within days of landing. Were they cornered or found out and surrendered? That would be a little different than turning themselves in, but, I assume the facts they gave were valuable "raw" intelligence.

[Marty]

"Good intel builds up over weeks of hard work. It is never an admission ala 24; it is a massing of information that gives you a decent chance of doing the most damage to your opponent. I've spent a lot of my career looking at 'raw' intelligence..."

Bob, I have spent almost all of my career transforming "raw" data into actionable information. There is no pearl so valuable as a single fact in a swath of "raw" data that is itself actionable. The process of gathering intel for weeks, months, years and evaluating is important, but if we bombed Yemen because information placed the primary target at a location at a certain time of day over a period of weeks then we should not be surprised we missed. I would have expected human intelligence of his whereabouts to drive an attack that visible.

I will defer to your direct experience on how often this kind of "raw" intelligence is used without corroboration, I suspect more than most would be comfortable with. I see the ability to interrogate "terrorists" as a means to gain these kinds of corroborating facts for, as I said,a very short amount of time.

[Carleton Wu]

I am confused why they would be given long sentences after turning themselves in within days of landing.

Wikipedia on the operation (yes, the guy who turned himself in did get 30 years). Also, although they were sentenced to decades in prison, they appear to have only served a few years: In April, 1948, President Truman granted executive clemency to Dasch and Burger on condition of deportation. They were transported to the American Zone of Germany, the unexecuted portions of their sentences were suspended upon such conditions with respect to travel, employment, political, and other activities as the Theater commander might require, and they were freed. link

[Hartmut]

If we can believe the Old Testament, Israel made a distinction between 'normal' war, i.e. taking other peoples' land and possessions by force, and 'the ban', i.e. genocide including the destruction of all enemy possessions (I assume in order to show that it was a holy not a greedy war).
---
The French in Algeria were for a time successful with the 'quick torture' recipe and practically wiped out the first generation of nationalist leadership. But it turned out to be a disaster in the long term.
---
I think the 'just war' theory (better: pretense) is a bit older than either Cicero or St.Agustine (a great admirer of Cicero btw as were many 'fathers of the church') but most earlier attempts* were in my view preconceived justifications for wars with not so 'pure' motives (not to speak of ex-post facto justifications fabricated long after the war).
---
Cynics have said the 'civilized' people commit atrocities no barbarian** would ever dream of (for both a lack of imagination and for possession of a basic sense of honor alien to many 'civilized' people).

*I would include Platon here
**or in another version: no demon in hell has the ingenuity of evil and cruelty a civilized human can muster

[Uncle Kvetch]

I see the ability to interrogate "terrorists" as a means to gain these kinds of corroborating facts for, as I said,a very short amount of time.

Marty, "interrogation" isn't at issue here -- torture is. Unless you care to walk this back:

More important, torture after the first 48 hours is certainly silly because the dispersal has taken place. But in the first six hours you might find out something you can use

A little bit of good faith goes a long way.

[russell]

I am confused why they would be given long sentences after turning themselves in within days of landing. Were they cornered or found out and surrendered?

The two guys who weren't executed were Dasch and Burger. Both landed on Long Island on June 12, 1942. Dasch called the FBI in NY on the evening of June 14. There is reason to believe he intended to surrender from the outset of the operation, or at least while underway, before ever arriving in the US.

Burger knew what Dasch was up to and, when Dasch surrendered to the FBI in DC, waited patiently in his hotel in NY for the FBI office in that city to come pick him up.

The other guys were rolled up pretty easily from there.

I don't know why they got 30 years (Dasch) and life (Burger). In general, Roosevelt and Hoover appeared to be highly motivated to make it seem like the FBI had cracked the plot with no outside assistance. Perhaps there was a belief that a lighter sentence would signal that they had surrendered.

I think there may have also been a desire during wartime to just throw the book at them. One of the motivations for trying them in a military venue was so they could bring charges that would carry longer sentences. Since they hadn't actually done, or even tried to do, anything harmful at the time of capture, the only civil charges they were likely to be able to make stick carried fairly light sentences, maybe a few years at most.

I highly recommend the CRS paper on ex parte Quirin if you're interested in the details.

[Carleton Wu]

Since they hadn't actually done, or even tried to do, anything harmful at the time of capture, the only civil charges they were likely to be able to make stick carried fairly light sentences, maybe a few years at most.

Couldn't they get conspiracy charges? They certainly had a plan and had carried out overt acts to forward that plan.
I don't have a cite, but I thought that the lion's share of the motivation for the tribunals was, as you say, to prevent an open court trial where the saboteurs would reveal that they had easily infiltrated the US and had only been revealed by their own surrender. The government thought that those revelations would be damaging to morale.
Nice link, btw- thanks.

[Marty]

Uncle Kvetch,

You are correct, I have become quite numb to the interchanging of those two words in these threads. I don't think we should torture anyone period, I think interrogation can provide valid information that is actionable in the short term. I was focused on the time frames in my response.

Thanks for pointing this out.

[liberal japonicus]

Bob,
thanks for the shout out in the previous thread and apologies for not getting over here to participate in this one. As a meta point, I'd like to encourage the starting of threads to keep conversations going, even though Dr. Science and I didn't do that here.

I'd suggest that there is a third category, that of pirates, which colors our dealings with detainees. The key point is that pirates operated/operate in an area where the law does not cover, so harsh measures are the norm rather than the exception (remember the Maersk Alabama?) This LGM book review points to what is at issue.

The other major requirement is the medium in which pirates operate. The term pirate suggests an implicit distinction between those who rob at sea and those who rob on land. Cicero made this more explicit by indicating that robbers on land remain part of the web of obligations, while no obligation is owed to pirates. Heller-Roazen argues that the key distinction is that pirates are lawless men who operate in a lawless space. In Western conceptions of law, from the Romans forward, the sea has stood as a legally exceptional zone. Those who rob within this exceptional zone (assuming they don't work for a state, in uniform or no) are a special class of villain, to whom no mercy or legal obligation is owed. Heller-Roazen further argues that Western legal thought has periodically become preoccupied with the question of what differentiates legitimate and illegitimate combatants. Indeed, he argues that the most of what we regard as the laws of war depend to some extent on such a distinction. He quotes Cicero extensively on the topic, as well as Grotius, Kant, and Carl Schmitt. For the latter, one of the contexts concerns the question of whether submarine warfare should be understood as piracy or as a legitimate warfare. Interestingly enough, Schmitt further argued that a "war on pirates" is a contradiction in terms; war is political, while belligerency against pirates constitutes a non-political act.

While we have termed Afghanistan as a 'war' based on the resources involved, the enemy is is perceived more as pirates. Whether this is correct or not is another question, but I think those are the antecedents we are dealing with.

[Point]

Gotta say, LJ's comments on piracy are making a lot of sense...

[Hartmut]

Pirates have been defined as hostes humani generis (enemies of all mankind) in the past, allowing anyone to take arms against them. This definition seems to have been dropped by now or the German government would not be tied into legal knots about the German navy going pirate hunting at the Horn of Africa (the current construct only allows defense against attacks but no 'unprovoked' hunting).
I am not sure when letters of marque (still mentioned in the US constitution) became illegal. The idea of reviving the hostes humani generis principle for non-state terrorists looks interesting. Btw, hijackers of planes in German are called Luftpiraten (air pirates), so the idea is not actually new.

[Hartmut]

I just checked: Letters of Marque became illegal in 1856 with the http://en.wikipedia.org/wiki/Declaration_of_Paris>Declaration of Paris. The US did not formally accede but, since after the Civil War, decided to follow the principles.

[CharleyCarp]

More GTMO follies.

[CharleyCarp]

If our culture and politics weren't very seriously broken, stories like that, of which there are a great many in GTMO, would destroy the reputation of military intelligence for a generation.

[CharleyCarp]

I can't see any justification at all, historical, legal or moral, for referring to any faction in the Afghan civil war as "pirates." Rather, use of terms like this smack of attempts on the part of the US to operate in a lawless manner.

[Ugh]

would destroy the reputation of military intelligence for a generation.

I thought military intelligence was one of the original oxymorons?

[Eric Martin]

While we have termed Afghanistan as a 'war' based on the resources involved, the enemy is perceived more as pirates. Whether this is correct or not is another question, but I think those are the antecedents we are dealing with.

I think one could argue that al-Qaeda might fall into that category, but native Taliban and non-Taliban factions fighting to take control of their own country? Can't see it.

[Point]

Interesting note on the pirate principle: it seems the infamous Mr Yoo was seeking, in part, to apply the hostes humani generis principles to just about every suspected terrorist -- though, unsurprisingly, he seems to have a limited understanding of the term, not even invoking it proper:

"Why is it so hard for people to understand that there is a category of behavior not covered by the legal system? What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws…"

Now, this is actually pretty misleading -- it confuses a nation's domestic "legal system" with "the laws" between states (of war, etc). Traditionally, if a pirate was captured on the high seas, it was considered fully fair for the nations of the seizers to try the pirates by their own domestic laws.

That's why, for example, Abduwali Abdukhadir Muse was brought to America for trial after he was taken captive. And it's why trying certain* AQ terrorists in American courts makes sense.

*for example, it would be preferable to have them tried in the country they're captured in

[Point]

On Eric's pirate point,

OT1H, the captured Taliban seem to be a more or less clear case of POW; OTOH there is significant overlap of criminal enterprises that may well be better handled by the Afghan government. AAR, pirates are a poor moniker for them.

[liberal japonicus]

I think it is misleading to elevate the Taliban to the status of legitimate representatives of the Afghanistan people. I understand that you feel it is a 'civil war', which implies a relatively equally matched set of combatants, but I think that grants too much. If there are Taliban who are willing to forgo armed struggle and stand in the political arena, they should be allowed to do so, (though if they do, would they revoke women's suffrage as they did from 96-2001?), but at some point, the refusal to acknowledge the 'web of obligations' puts them in the same waters as pirates. But I wasn't drawing that conclusion, I was addressing Bob's definitions.

I can understand how the term can be used to obscure laws and the US responsibility to live under those laws. In fact, in trying to find the LGM book review, the first thing that popped up was a Wall Street Journal op-ed, and the LGM review points out that John Yoo used the term as well. But as the post points out (everyone did click on the link, didn't they)

None of this is to say that Heller-Roazen condones, or in fact has any normative position at all, regarding the legal categorization of terrorists by the Bush administration. Rather, he implies that the forms of reasoning employed to determine the status of such detainees are not alien to the Western legal tradition, which has always defined some combatants as illegal. In any case, the book is short, densely argued, and worthwhile for those interested in the development of international law

If you want to argue about the specifics of how this discussion relates to Afghanistan, have at it, but my aim in raising the point is that there is a third category. And the invocation of Lieber's code doesn't really solve our problems when the battlefield expands to be anywhere in the world. I'm not sure what the answer is, but I am pretty sure that the notion that we are going to continue have relatively equally matched sides square off in uniforms with recognized battle lines is more a hope than a possibility.

[Eric Martin]

I think it is misleading to elevate the Taliban to the status of legitimate representatives of the Afghanistan people

Are you saying that the Taliban do not represent some segment of the Afghan people? Isn't that hard to argue considering that they themselves are...well, Afghan people? If you mean to suggest that I believe the Taliban are the reps of all Afghan people, or even most, then you are incorrectly putting words in my mouth.

However, it is an empirical fact that they are the legitimate representatives of some non-negligible number of Afghans.

I understand that you feel it is a 'civil war', which implies a relatively equally matched set of combatants, but I think that grants too much.

Civil wars do not have to be relatively equally matched combatants. That is not in the definition. Though in the present example, that likely exists. Although the warnings are always that the Taliban is a vastly superior force and will overrun Kabul within months of our departure. I tend to think that is an exaggeration.

but I am pretty sure that the notion that we are going to continue have relatively equally matched sides square off in uniforms with recognized battle lines is more a hope than a possibility

Sure, but I don't think this should give foreign powers added power with respect to another nation's civil combatants.

[liberal japonicus]

Well, they certainly don't represent women, or non-Pashtuns. And you have argued that the Taliban is not a unitary group but a number of different factions. If you argue that the Taliban are a side in the civil war, you are elevating them to the status of a group that could conceivably speak for all the people of Afghanistan at some point in time.

And civil war does 'imply' at least an equality in the sense of force, that one side cannot simply roll up the other side. And this rolling up can take time. We wouldn't term the Japanese Red Army or the Baider-Meinhoff gang as one side of a civil war. Are you willing to say that the participants of the intifada were one side of a civil war? How about the Modoc or the Sioux or the Nez Perce? By using the term 'civil war', you are implying a number of things, but I tend to think that it is more in service of your argument rather than the other way around.

And if you are saying that foreign powers should not add power to another nation's civil combatants, you seem to be arguing that there was no reason to invade Afghanistan at all. Or there was, but that at some point in time, there wasn't. At what point that occurs is what I am interested in.

I note that you want to make this about Afghanistan and do not want to take up the larger aspects of this discussion. Which is fine, but be aware, that was not my intention. It was simply to address the notion in the post that there are two categories, combatants and non-combatants.

[Eric Martin]

Well, they certainly don't represent women, or non-Pashtuns.

Yes, unfortunately, many women believe in the culture of the Taliban. And the non-Pashtun factions represent non-Pashtuns as they themselves are non-Pashtun. That is empirical reality.

If you argue that the Taliban are a side in the civil war, you are elevating them to the status of a group that could conceivably speak for all the people of Afghanistan at some point in time

This is not a logical necessity. Ethnic civil wars have occurred throughout history. But does that mean that one must allege that one ethnic faction could speak for all people in order to qualify the conflict as a civil war? Why?

And civil war does 'imply' at least an equality in the sense of force, that one side cannot simply roll up the other side.

Within a certain range, you are right. I was overly categorical. But as I said in my comment, we're in that range at the moment. Unless you're arguing that the Taliban are so large and powerful as to render the Afghan government/northern alliance a force equal to the Baider-Meinhoff gang?

Explain how there isn't a relative parity in forces?

And if you are saying that foreign powers should not add power to another nation's civil combatants, you seem to be arguing that there was no reason to invade Afghanistan at all. Or there was, but that at some point in time, there wasn't. At what point that occurs is what I am interested in.

First of all, if we wanted to eradicate al-Qaeda's presence, that could have been the purposes. Regardless, I've never made such a hard, fast, absolute rule about civil wars. I have long maintained that our primary focus should be al-Qaeda, even if that meant some involvement in the Afghan civil war. Now that al-Qaeda has been eliminated from Afghanistan more or less, that justification needs to be reassessed and recalibrated. Hence my writing on just that.

I note that you want to make this about Afghanistan and do not want to take up the larger aspects of this discussion.

LJ, I was responding to Point's argument about applying the standard to Afghanistan. He brought up Afghanistan, I responded. And I left it at that. Then you continued the conversation about Afghanistan. I'm not sure that means that I was the initiator of the Afghan conversation, or the sole perpetuator.

[Point]

Actually Eric, you were responding to (ironically) LJ; I just said his point about how people were seeing AQ as if they were pirates made a lot of sense.

[Eric Martin]

Ah, you are correct Point. Though, to go all Jonah G on y'all, that only reinforces my point.

[Point]

Jonah G?

[Eric Martin]

Jonah Goldberg.

His famous dodge when someone proves something he said is incorrect is to wave his hands a bunch and then declare that the correction only reinforces his point.

It's an Internet Tradition.

[Point]

Ah -- many thanks.

[Doctor Science]

Bob:
Of course, the Bush Administration happily ignored nearly 200 years of jurisprudence on the subject and invented an new category, the "illegal combatant," to allow them to hold "detainees" at GTMO indefinitely. As an aside, I was on the Joint Chiefs of Staff during that time, and gave a copy of my book to one of the Office of Secretary of Defense lawyers working the issue. I don't think it did any good, but we all do what we can at times.

You gave someone a *book*, and that counts as "do what we can"?!? What kind of standards of moral action do you have? I was marching in the streets, writing letters to the paper, going to see my Senator -- and getting no traction, of course, because I was just a Dirty Frakkin' Hippie, clearly not a Serious Person.

What I don't understand is why the Joint Chiefs -- and everyone else in a position of power with a lick of morals or knowledge of history -- wasn't pushing back, *hard*, against the Bush Administration. The reason I want to understand is that my goal is de-Bushification, and the first step is knowing what needs to change.

[Doctor Science]

destroy the reputation of military intelligence for a generation

Does it deserve not to be destroyed?

There was a time when ROTC and CIA recruiters were not welcome on college campuses. There were a variety of reasons for this, but one was that people were aware that young people would go into those organizations and be taught to do evil. At this point, I would be pleasantly surprised if there was another backlash against the military and intelligence organizations; far more likely is that a substantial number of Americans will continue to *enjoy* having people do evil on our behalf, bonding with their inner fascist.

[liberal japonicus]

Dr. Science,
If you'd like a little more elbow room to express your thoughts, you are welcome to post something over at TiO. If you are interested, drop a line at libjpn at gmail.

[CharleyCarp]

I'm going to guess that in all nine of the GTMO habeas cases that the government has won -- of the some 40 that have gone to decision on the merits, more than 30 have been won by prisoners -- the winning argument was that the prisoner was a participant in the Afghan civil war, on the side of the then de facto government of Afghanistan. A kitchen assistant, a fighter who lost his leg, a guy who carried a gun (never fired it) for a short while, etc.

Talking about 'terror suspects' with respect to men in the prisons in GTMO -- except for some of the men moved there in the fall of 2006 -- is more or less the equivalent of talking about Saddam's WMDs in 2005. Yeah, people were still doing it. But you knew something about them when they said it.

[russell]

If you argue that the Taliban are a side in the civil war, you are elevating them

What are they, if not that?

Whatever we do in Afghanistan, I think we have to recognize that the Taliban represent a non-trivial portion of the Pashtun people. Who represent a significant portion of the Afghans.

It's a good thing to disagree with, and disapprove of, the Taliban's treatment of women, and of folks who don't share their extreme understanding of Islam.

But I don't think we get to say who does or doesn't represent a given community in Afghanistan.