It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

Sorry, this is just plain silly. Due process and habeas corpus has never applied to combatants, and the mere suggestion it should is risible. Can you imagine the WWII case where the German Soldier’s mother shows up at a federal court petitioning for release: “Please let Heinrich go, he’s not a real Nazi, his Hitler Youth friends talked him into it”? Of course not. We detain combatants for the duration of the conflict, for our own protection. Because if we don’t, they tend to kill our citizens (usually the ones in uniform).

Similarly, most of the hand-wringing on this subject displays a stunning depth of ignorance on military matters and the law of war. The Geneva Conventions have very strict standards of treatment for enemy prisoners, protecting them from any sorts of abuse or insult, and paying them for their detention. But in order to qualify, the combatants have to be legal (i.e., follow the rules of war). Those that don’t, don’t get the protections of being a combatant. Nor should they. There’s a good reason for this: it incentivizes other belligerents to follow the laws of war (so our own civilian populace doesn’t have to worry about being the target of an attack, and our soldiers don’t have to worry about being tortured, etc.).

Lawful combatants are entitled to strict hands-off treatment:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

Unlawful combatants are only protected by the Convention Against Torture (and may be punished for the law of war violations that make their belligerency unlawful). They don’t suddenly get a bunch of due process rights (e.g., habeas corpus, jury trial), just because they decided to flout the laws of war.

If you think a democrat administration won’t do the same thing, I’ve got some land I’d like to sell you. . . .

Greenwald should have said “alleged war crimes”, since there are no convictions.

And no convictions are likely to come, since this administration likes to shield itself behind executive privilege, national security and a plethora of other dubiously legal obstructive tactics.

Worse still, our government has already admitted to using a technique for which Japanese soldiers were hanged following World War II, but has again shielded itself from prosecution. One can reasonably predict that any attempt to hold higher-ups accountable for this would be met with the dual-pronged defense: “we didn’t really mean what we are on record for admitting,” and, “you cannot have access to any probative nor exculpatory evidence due to national security concerns.”

It seems to me that habeas corpus, the rules of evidence and due process only apply to the executive and their agents and surrogates, not to the average citizen or combatant.

This is all good and well, if you are willing to admit that all things being equal, in the end might is right and to hell with the rule of law and the founding principals of this nation.

Being a true patriot means accepting that even the most depraved, guilty, bloodthirsty and vile individuals are allowed their day in court and that if the state cannot prove guilt, they may walk free. It also means that we do not stoop to the level of a Turkish prison or Japanese POW camp in the name of democracy or freedom — democracy and freedom are meaningless in a society which sheds the rule of law in the name of its own security.

I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment . . .

Well, I’d note that the military leadership fouled up Abu Ghraib (specifically, BG Karpinski telling her supervisors to “stay out of the towers” at the holding facility).

On the NSA Director thing, that isn’t what he said. Here’s a typical liberal site bemoaning Hayden’s “ignorance” and adjudicating between the two claims in the interview:

Landay: “the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.”

Hayden: “The constitutional standard is “reasonable.” …I am convinced that we are lawful because what it is we’re doing is reasonable.”

Of course, Hayden is right and Landay is wrong. A clear reading of the Fourth Amendment should’ve clued in the excitable types:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nowhere in there is a requirement for probable cause for a search, but only for a warrant. And the idea that a warrant is required for every search is of course incorrect. Pat-down frisks, inspections at border crossings, and searches pursuant to an arrest are common examples of searches that don’t require a warrant . . . because they are reasonable. And the AP, et al, refused to take up the torch on that particular issue because it was demonstrably wrong.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

You can quit and fail the course . . . just about nobody does. And the physical act is precisely the same . . . so is the difference enough to go from training to torture? I find that a bit hard to feature.

But I still think nothing in the interrogation techniques could reasonably be construed as torture. Waterboarding? Hardly. When we do it to our own troops at SERE School, we call it “training.”

First, thanks for the info and the pointer to the Medillin case; I’ll read up on that when I get the chance.

As far as your point quoted above is concerned, I would tend to think that there’s a pretty big difference between your “training” (when you know that there are boundaries, and that–if nothing else–you can quit and call an end to it) and a real interrogation.

My point is simple – we need clear, bright lines on this question, as well as clear oversight. We may have the former, in the form of the DTA, but we most certainly do not have the latter.

On the other hand, they’re trying to call long interrogation times, loud music and sleep deprivation – torture. Get serious…

Oh, I’m with you on this one. My problem is that there is no ongoing oversight, there seem to different rules for military/CIA/civilian-contractors, and we know–in graphic detail–what happens in the absence of bright lines and oversight.

I’ve simply lost confidence–and, more importantly, trust–in the current crop of civilian leaders. We have an NSA director who asserts, repeatedly and in “correct the student” mode, that the words ‘probable cause’ do not appear in the Fourth Amendment, a Director of National Intelligence who says that we simply cannot execute surveillance programs without telecom immunity (when existing case law and precedent clearly provide immunity for LEGAL surveillance requests), an Attorney General who states that the courts can’t deal with classified material (when there is a huge body of work that clearly shows that courts can, and do, deal with classified material on a routine basis), and the like.

I simply can’t take “trust us – we’re doing it right” any longer.

I know what you mean. I never read Saar’s book but “cleansing” of the ACUs (removing all tabs, name tapes, patches) is simple and strangly enough, they provided pockets with more then enough room for even a 1st Cav patch to fit in. The medic I talked to stated no issues like that, just a lot of spitting and other antics by the prisoners. She also stated that the prisoners taken by Iraqis and given to US Forces were happy to be in our care.

I was at Riley years ago. Lived on Hubner Rd in the “Flag House” next to Stone Court by the buffalo pens. Nice place, but my poor wife was allergic to everything there.

I read about half of Erik Saar’s “Inside the Wire” before my nephew came back and mentioned the book to him. He was familiar with Saar because of articles he read, we agreed that Saar was quite the little drama prince.

One incident I described to him from the book was how Saar had said they had to duct tape their name tags so the prisoners wouldn’t see their names. My nephew said, “Aunt M, remember the velcro?” I had helped him with his badges one morning when I visited him at Ft. Riley. He said, “we don’t do duct tape, we just pull it off and put it in our pocket.”

Such little things can reveal a lot.

When I returned from Iraq last year, I spoke with one of the Soldiers who was a madic charged with treating the detainees. She backs up your nephew’s story. The “detainees” were abusive and violent while there was almost nothing that our Soldiers could do to them aside from defending themselves.

He brought the detainees in to be interrogated and sat in on the interrogations. He said the interrogaters were not allowed to touch the detainees and they are not being abused.

Ummm…I’m not an attorney, but a plain reading of the decision you cited doesn’t make a statement of quite such sweeping provenance.

There are several since that make the point–most recently Medellin v. Texas, wherein a treaty obligation required federal legislation to carry it into effect. But I think the first case was also fairly explicit, if one chose the paragraph before yours:

The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that ‘this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.’ [emphasis added]

On the legislation point, the Military Commissions Act of 2006 clarified enforcement of Geneva common article three (and the War Crimes Act)–and an amendment would’ve outlawed waterboarding, but it was defeated. The Detainee Treatment Act of 2005 restricted interrogators to the US Army Field Manual, which is far more restrictive (as it was designed for POWs). Nothing speaks directly to modify the CAT, as far as I can tell, except to provide more restrictive legislation. But I still think nothing in the interrogation techniques could reasonably be construed as torture. Waterboarding? Hardly. When we do it to our own troops at SERE School, we call it “training.”

Then again, we should be above that. Can’t say as I don’t crave having it done at times tho. Therein lies the benefit to the “jus’ shoot ‘em” mentality. Saves alot of hoopla on what we can and can’t do. Then again, there goes any possible intel.

On the other hand, they’re trying to call long interrogation times, loud music and sleep deprivation – torture. Get serious… I called that a long work day when I was in the film sound biz.

Then there’s “embarrassment and demoralization”, like some knickers on the kepi? Come on… I don’t foresee any long term, major emotional trauma resulting. Abu Gharib? Deplorable for them. Then again, the same stuff S&M and porn sites are made of… which I hear are growing in popularity in the Arab nations now they are allowed internet access. Odd no?

I suspect these jihadis are made of more stern stuff than they let on. They’ve learned how to use our judicial system and public sympathy as another of their propaganda weapons to divide and conquer.

It gets to be absurd thinking we’ll get intel by a smile, fresh prayer rugs and a Micky D’s Happy Meal. It’s a tough issue when you play the semantics game. This is okay, this isn’t. I’ve come to the conclusion that whatever they do, fer heavens sake, don’t take pictures.

But my most oft asked question is… how come… when adhering to the Geneva Convention comes up,…it’s only the US who gets called on the carpet? What about Germany, Japan, Korea, N. Vietnam, etal… You don’t find their morality questioned on the world stage. What about the jihad movements? See massive articles on their immorality?

I guess it’s rules that only we must follow. ‘Cus no one else sure does.

No one is advocating the pulling of fingernails but when our countries security is at stake our intelligence agents need the tools to extract that information.

Cecil Turner wrote:

If we’re basing this discussion on Yoo’s memo, the whole point of it is that enhanced interrogation is not “torture” unless it causes “severe physical or mental pain or suffering” (Yoo, p.38). As the most abusive thing in the enhanced interrogation list was waterboarding (and not practiced at Gitmo, so the “humane” bit for prisoners there doesn’t seem to apply), it doesn’t appear to me to rise to that level.

When one says something like this:

In two memos he wrote while a deputy counsel in the Justice Department, Yoo wrote that as long as military interrogators were performing their work outside of the United States, they could legally use a number of unspecified techniques as long as they did not violate his definition of torture, which was “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”

one is setting an incredibly high bar for the definition of “torture.” By that definition–with which I do not agree–waterboarding IS torture, and Curt’s “pulling fingernails” isn’t; for that matter, dog attacks, electrical shocks and sodomy at Abu Ghraib (read the Taguba report) don’t qualify as “torture” under Yoo’s definition.

There’s also a lack of consistency among the US intelligence community. The military folks say, and have said for years, that torture doesn’t get usable information. The CIA seems to be insisting that they need the authority to torture, and that it does result in usable information.

All I’m saying is that we need bright, clear lines to be drawn. Abu Ghraib showed us what happens when such lines either do not exist or are not policed, but we have no evidence–save “trust us”–what lines exist or are policed today.

I don’t think it unreasonable to suggest that this situation is NOT in accordance with “American values.”

Treaties are essentially equivalent to Federal Statutes, not the Constitution, the Supreme Court has held since 1884.

Ummm…I’m not an attorney, but a plain reading of the decision you cited doesn’t make a statement of quite such sweeping provenance. A quick reading of the decision (boy, I wish that SCOTUS decisions were still this brief and to the point!)

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private [p599] citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

As I read this (and I welcome correction from any legal scholars who may be reading), it says that Congress may certainly pass laws to effect the “enforcement, modification or repeal” of treaties into which the United States enters. Note that they do not direct that Congress MUST pass such legislation, but merely that it can do so.

So, then, I guess my next question would be what legislation has been passed that would affect the provisions of the CAT or the Geneva Conventions (particularly the former).

Would one consider 12 hour interrogations, and bottles provided instead of bathroom breaks torture? How about refusals to provide legal counsel when requested? Quick… call the ACLU. Book press conferences for Pelosi and Reid.

Oh wait… that’s the treatment of the Haditha soldiers. You know, the ones Murtha called cold-blooded murderers? Never mind.

Three out of the four have had the charges dismissed as of this week. Where’s the headlines? Buried deep somewhere behind news blurbs of Obama’s bowling ability. And Murtha? Not a word. I believe the lawsuit against him is still moving thru the process. Hope so.

But where’s the outrage for their treatment from the no torture advocates? Could it be they care not if it’s our boys? Or could it be our warriors have thicker skins, and don’t race for the press and sympathy when given a tough time.

What a world…