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May 21, 2004

The shame continues. What made them think they could hide this?

Our "private security forces" are sometimes little more than warmongers and terrorists themselves. What made them believe we wouldn't find out?

Prisoners in our care have been murdered, people guilty of nothing but being born Iraqi. What made them think this was okay??

"They" have, indeed, screwed up. Gross mismanagement. A criminal lack of competent leadership.

What are we going to do about it?

Update: I'd also like to add that broadcasting video to the Arab world of Husseins' tortures should not be used to justify or even try to give a context for our behavior.

They're trying to grade on the curve again and the scariest thing of all might be the mindset that this is okay. We don't have to be "good" we just have to be a little bit better than the monsters.

Read that column in any case. It discusses how the rest of the world is looking at us these days.

Posted by AnneZook at 09:29 PM


Let's see... Viktor Bout is denounced by French diplomats, so the Bushies are compelled to adore him. It's practically in the handbook, probably on the same pages smeared with grease from some Freedom Fries.

As for the situation in Iraq, a larger part of my attention's going towards the emerging statistics that there are more "private contractors" in Iraq, operating ostensibly with/under The Coalition (I think I'll keep referring to them that way, to help draw out the comic bookish sinister nature of it all), than there are actual military personnel. That these people are exempt from all Iraqi laws under a special protection document (unless Paul Bremmer signs a special waiver) and aren't subject to military codes of justice, it's no wonder it's a snakepit.

Posted by: MJ Norton at May 21, 2004 09:52 PM

What are we going to do about it? Vote. Every chance we get. Encourage our friends, colleagues, enemies, neighbors, patients, cashiers and parole officers to vote. I might even give money to a political organization or two, and my Amnesty International membership is definitely overdue for renewal.

Let's find out if the majority really thinks this is how we want to be known to the world.

Posted by: Jonathan Dresner at May 21, 2004 10:56 PM

I'd like to know if Anne or Dresner think it would be okay to go after this crew when they are out of office and arrest them for human rights viloations. I know that, traditionally, we don't put people on trial from former administrations because it looks like revenge and thus not good for democracy. But surely the rule of law requires that there are some cases where we do go after even the highest ranking officials, even the President, for laws broken?

Anyway, if a man can get a impeached for getting a blowjob, why can't a man get impeached for corrupting the American military?

Posted by: Lawrence Krubner at May 22, 2004 11:46 AM

Well, Ford pardoned Nixon, so somebody thinks that Presidents can be tried for stuff after they leave office. And the Clinton lawsuits firmly established the vulnerability of the president to legal action, as long as it's based on non-official action.

The problem is that we don't really try our leaders for their failed policies, unless they blatantly violate law and leave behind evidence that they knew that's what they're doing and there's an opposition party in control of some other branch of the government......

Otherwise, I agree, they should be tried as human rights violators and war criminals.

Posted by: Jonathan Dresner at May 22, 2004 12:51 PM

The Nixon case was clear. He was complicit in an action committed on USofA soil against USofA citizens that was against USofA law. It's not an exact parallel, especially since it was a re-election campaign and not an "official" policy move under question.

Beyond that, exactly what is the Chief Executive's liability for his policies while in office?

A strong and opposed Congress can do much, of course. In this case, though, we have a Republican-controlled Congress so the kind of spiteful, even childish malevolence aimed at Clinton is out of the question.

Can Bush or his Administration be tried for legal human rights violations of people whose legal status is unclear? Doesn't SCotUS's decision on the "enemy combatants" question provide a fundamental link in any such chain of action?

What are our options for redress for a disastrous policy decision? I seem to remember that presidents aren't allowed to break USofA law in doing their jobs, but what precisely is the law on our books about this kind of thing?

I'm not naive enough to think we haven't tortured prisoners before, in other situations (although I was that naive a year ago), and I certainly never thought that even this Administration would be revealed to have sunk to this level, so it's not a question that I ever thought I'd be answering.

First, the "enemy combatant" question has to be resolved. We have to do away with this legal limbo.

I've ranted about this for months. There should be no status you can assign someone to that bypasses Constitutional rights or can be used as a shield against the Geneva Conventions. (And while we're considering our options, let's consider passing a law against shipping prisoners to countries where torture is not illegal, okay?)

Personally? Yes, I think high-level heads should definitely roll. Realistically, I don't think it's going to happen.

I'd like to see it, though. A conviction on the books would be the biggest deterrent I can imagine against the next neocon Administration's blindered desire to achieve their ends at all costs, but the Republican Party isn't going to let it happen.

Also? The Iraqis tortured and killed by USofA soldiers are entitled to justice.

Posted by: Anne at May 23, 2004 09:11 AM

Well, there was Iran-Contra, in which Reagan-Bush escaped impeachment only by virtue of their underlings allowing personal loyalty to override loyalty to law or justice.

But as far as the current situation is involved, the applicable law is international treaty. We'd have to prove that there was a violation of treaty, then we'd have to prove that Bush-Cheney clearly ordered the violations. Oh, and Congress has to want to do it.

Posted by: Jonathan Dresner at May 23, 2004 12:30 PM

Yes, the first Administration of neocons was involved in other illegal behavior. Well, at this point no one should be pretending we don't know what will result from the election of neocons, right?

I think the USofA needs a specific law on its books making torture illegal, with no quibbles about citizenship or detainee status.

Posted by: Anne at May 24, 2004 09:20 AM

"Well, Ford pardoned Nixon, so somebody thinks that Presidents can be tried for stuff after they leave office"

No, no, I meant it the other way - the Nixon case established the opposite precedent, that when a President breaks the law, it is best to pardon them, because, clearly, if you go after them it looks like revenge. We've had lots of Presidents who clearly broke the law. Arron Burr gunned a man down but never faced arrest (he was Vice-President at the time he killed Alexander Hamilton, a fact I find incredible). President Jackson moved the Cherokees after the Supreme Court had ruled in their favor, and when he met the Chief Justice on the street he said, "You've made your ruling, with what army will you enforce it?", as clear an articulation as ever made on American soil of the idea "As long as I'm popular, I can break the law." Grant had a famously corrupt administration. Nixon and Reagan both had high level operatives break the law, actions they probably had knowledge of ahead of time. The Clinton case seems to have further established that a President can't be touched for actions done while they are in office, acting in an official capacity.

Despite all the crimes no President or Vice-President has ever faced arrest. Obviously, it looks like revenge if one party gets voted out and the next, arriving on the scene, arrests everyone from the former regime. But doesn't there come some point when preservation of the rule of law demands that some action be taken? It seems clear to me that Rumsfeld encouraged and directed large scale violations of the Geneva Convention, a treaty that the Senate long ago ratified and some President signed, meaning it is the law of the land. Should he be held to account? Or should Kerry, if elected, start by signing pardons for everyone in the Bush administration, so the country can move on?

Posted by: Lawrence Krubner at May 24, 2004 11:39 PM

You know, if we had more than two parties, it might not be such a problem.

Seriously, though, you're right that the political backlash from apparently politically motivated prosecutions would be horrendous. The judicial stalemate is bad enough, but if we start brandishing prosecutorial swords with partisan goals, it'll all break down pretty quickly. On the other hand, with overwhelmingly clear evidence of vicious wrongdoing, it shouldn't be that bad. That's why there are international courts, and that's why we haven't agreed to be a party to one since.... Nuremberg and Tokyo, I think. And we got our rhetorical heads handed to us at Tokyo.

I'm not entirely sure about the Ford-Nixon precedent, though. I'd be more convinced by your interpretation if Carter had pardoned Nixon.

Posted by: Jonathan Dresner at May 25, 2004 12:23 AM

I think it's worth remembering that Ford's pardon of Nixon came in a different era, when this country wasn't yet accustomed to the sight of its chief executive squirming under the interrogation lamp.

There was a sense that it was the "right" thing to do, to pardon Nixon, so that we could move past it. If only we'd known, of course, that far from moving "past" such a situation, we would soon come to think of the White House and "dirty tricks" as nearly synonymous, maybe the nation would have demanded a different ending to the Nixon story.

Our national psyche, which was bruised by revelations of the Nixon debacle, has since been brutalized by successive revelations of misdeeds in high office. In spite of that, there's still a mystique about the presidency, I believe most people would be extremely reluctant to see a president stand for trial and would oppose a prison sentence.

If there were principled, conscientious men in office, that wouldn't matter, but if Bush & Co are what we're going to be getting in the future, then we're in trouble.

Jonathan is right, there's almost no way you can bring charges against an outgoing Administration without it looking punitive. And yet...when an outgoing Administration is seriously suspected of committing criminal acts, you have to do something. You can't just grant an unspoken immunity.

It is in fact, all falling apart. Uninformed voters return bad candidates to Congress on a regular basis, voting on a vague idea of what their party affiliation means in their mind and not on what the party actually accomplishes, if anything. State and local elections set records for low turnouts, year after year.

If you consider that three out of the last four Republican Administrations have been headed or at least staffed by arguably criminal incompetents and that most of the Republican Congressional leaders of the last 30 years have been, to put it politely, partisan nutcases, then you find yourself wondering if there's any way to fix us.

Posted by: Anne at May 25, 2004 08:49 AM

I've ranted about this for months. There should be no status you can assign someone to that bypasses Constitutional rights or can be used as a shield against the Geneva Conventions.

Anne- so non-US citizens are entitled to our constitutional rights? I'm assuming you all have actually read the Geneva Convention relative to the treatment of prisoners of war?

Article II requires that AQ and other insurgent groups agree to accept and abide by the convention (ask Nick Berg that) in order for current convention parties to be bound by the convetion. Article III gives protection though to people IF "Persons taking no active part in the hostilities." This in some cases may have applied to the folks in Abu G and those soldiers who violated the UCMJ and the GC should be prosecuted and the victims (or family members) be allowed to seek compensation (doubt Nick Berg or those 4 US citizens mutilated and burned will be afforded the same).

Article IV gives POW status to members even if they are not part of the GC if their organization meets the following criteria:

a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war

Don't think shooting from Mosques or carrying bombs in civilian cars exactly qualifies, do you?

I personally agree torture is bad policy and it is against the UCMJ. We should have let the folks in GITMO go a long time ago because (1) the value of any intelligence has evaporated by now; (2) we are fighting an information war too. We should basically take their picture and DNA and allow them to leave if an accepting country agrees they are on a "parole" status - if we catch you fighting again, then you've violated parole - go directly to jail.

Now, you all seem to think the President and the chain of command somehow came up with this torture policy and ordered it to be implemented. Well, if so and you can prove it, I agree that prosecutions are in order. So far we've had 1 court-martial, unofficial statements by lots of soldiers to include BG Karpinski, and not one has mentioned that the activities had come down from senior leadership as official policy. At best, some of the soldiers have said that some members of the military intelligence units (highest rank a COL) may have encouraged the actions. I find it telling that it appears a majority of the abusers came from one unit and mostly during one shift.

And you have BG Karpinski who gives new meaning to the term "taking full responsibility for the actions of one's subordinates" saying that "LTG Sanchez must have known" - okay, maybe - but knowing and not taking action, although criminal, is not the same as ordering the action to be done.

And now we have Hersh in the New Yorker blaming some SAP program. Let's not forget that Congress funds and approves (authorizes) those as well as the entire military outlays (Go back and read Art I, Section 8 of the Constitution) - and those approval votes came from both sides of the aisles - so Anne, you may want to add "democrat" to some of those Congressional nutcases..And do you really think the CIA and covert spec ops are going to get involved with low ranking conventional (not mention reservists) force soldiers? If you do, I still have some WorldCom stock I'm looking to sell...

And if we are going to haul Presidents in for mismanagement of the military, you'll have to bring in Carter, Reagan, Bush I, and Clinton as well for various bad policies as well as those leaders in Congress (and both parties were at various times in charge)..and let's not forget bad cabinet officials from all those administrations..

I've had tours in the Pentagon and NSC..nothing gets done that official from the WH without a big paper trail and lots of hands..even if you try to conceal it (Ollie North, Hillary Clinton, etc).

And no offense, but as a Soldier, I'll stick with being tried under the UCMJ as opposed to letting Eurocrats in the Hague do it..Soldiers do NOT have immunity from the UCMJ.

Posted by: Col Steve at May 25, 2004 11:34 PM

The problem, Col. Steve, is that the absence of Geneva protections is being interpreted as an absence of humanity; I understand that you are against that as well, as your introduction says. But I do not accept the idea that the Abu Ghraib abuses, even if carried out exclusively against non-Geneva sanctioned captured insurgents, are not a violation of law. Some law.

If the Iraqi insurgents are in violation of the Geneva Convention, then their actions should fall under the category of crimes, and their treatment should be consonant with that afforded civilian prisoners. Yes, there's a problem with civilian law in Iraq right now, but seeing as how we helped create the vacuum, should we get a pass?

Posted by: Jonathan Dresner at May 26, 2004 12:17 AM


that the absence of Geneva protections is being interpreted as an absence of humanity; I understand that you are against that as well, as your introduction says. But I do not accept the idea that the Abu Ghraib abuses, even if carried out exclusively against non-Geneva sanctioned captured insurgents, are not a violation of law. Some law.

Yes, for the military it is the UCMJ

Article 92 of the Uniform Code of Military Justice (UCMJ) says, "any person who violates or fails to obey a lawful order or regulation shall be punished as a court martial may direct."
Article 93 of the UCMJ says, "any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct." I think saying the prisoners were subject to the orders of their prison guards is reasonable.

There is one part of the hersh article I agree with - the quote by the "source" that (paraphrasing) if you have lots of grey areas, you need well-defined red zones. Remember the GC - while the overall principles are universal - was designed in light of WW II and for an expected East-West conventional showdown in Europe (I mean - provisions on the number of vacation days a POW gets, etc..)
The President should have challenged the international community to recognize the new type of threat and issue modifications to the GC or accept our (coalition) revisions.

Remember we've cycled over 300K troops into Iraq. For some, especially the reservists (no knock on them), the intensity and duration of the campaign as well as the cultural, physical (weather, etc.), and asymmetry of the adversaries (insurgent/terrorist tactics, etc.) aspects we probably greater than their training and personal/leadership expectations (this is partly due to the senior leadership throwing out a lot of the assumptions and planning factors made by the senior military advisors)..I'm not going to excuse the behaviors brought to light or I suspect some more that the investigations will reveal, but putting the numbers (currently less than 50 by the numbers I've found in reports) in perspective and the tremendous amount of power the individual (mostly young) soldiers can have, it is not as dismal as some have portrayed.

Again, constrast this with the thousands of "good" things the overwhelming number of our troops are doing, sometimes as risk to personal safety (as several friends of mine who command units over there now remind me). I'm not going to say we are universally the good guys, but remember we actually started to investigate and punish our soldiers well in advance of the photos being made public - do our adversaries condemn or praise the actions of Nick Berg's executioners or the mutiliation of the contractors, etc?

As I mentioned, we have to realize we are fighting a campaign - it's about integrating all aspects of our national power: diplomatic, economic, information, and military. At some point, you have to concede the utility gained from extended imprisonments - even if some forms are allowed under the GC versus the impact on domestic (and to a lesser extent our allies and to an even lesser extent the other nations that are either apathetic, envious, or hateful to us anyway) opinion. I'd rather defend the high ground even if I start with less advantages than try to take it later in the campaign.

and for contractors working for DOD, I think this law could apply:

18 U.S.C. 3261
Criminal offenses committed by certain members of the Armed Forces and
by persons employed by or accompanying the Armed Forces outside the United

(a) Whoever engages in conduct outside the United States that would
constitute an offense punishable by imprisonment for more than 1 year if
the conduct had been engaged in within the special maritime and territorial
jurisdiction of the United States -

(1) while employed by or accompanying the Armed Forces outside the United
States ...shall be punished as provided for that offense.

So, no pass. But let's keep things in perspective on the overwhelming number of our troops who are actually doing their best in tough conditions and often with vague guidance or bad policies while conducting themselves according to laws of war versus the few, who for various reasons, conducted themselves dishonorably, or failed to properly lead, supervise, and train those soldiers entrusted to them by the people of the US and thus contributed to the abuses and the shame on the military and the country.

Posted by: Col Steve at May 26, 2004 12:39 PM

Col. Steve,

Thanks for clarifying.

Posted by: Jonathan Dresner at May 26, 2004 07:15 PM

I tend to look at things simplistically, Col Steve. I'm astonishingly literal-minded, which does cause some communications problems.

For instance, in your long and thoughtful discussion of the GC, the only thought I couldn't get rid of was the astonishment than you actually seemed to be arguing it's okay for us to act like animals if someone else does.

That's just not good enough for me. No, "the enemy" doesn't always abide by the GC, but I object, most strenuously, to the argument that it's okay for us to abuse someone on those grounds.

Posted by: Anne at June 9, 2004 08:29 AM