A Way Towards The Rule of Law – An Answer to Cap’n Jack

Justice, what do you care about justice. You don’t even care whether you’ve got the right men or not. All you know is you’ve lost something and someone’s got to be punished. The Ox-Bow Incident.

Nine years after September 11 and eight years after the CIA provided a memorandum to the White House explaining that at a minimum, one-third of the detainees at GITMO were “mistakes” who had been purchased in bounty transactions. Nine years after the Department of Justice covertly elevated the President of the United States as a power above the Constitution and the laws of the United States and seven years after the Department of Justice assisted in allowing the torture of Ibn al Shaykh al-Libi to be laundered through Colin Powell to the UN and to America. So many years after so many incidents, our nation is still being flimflammed over what to do with so-called terrorist detainess. 

Enter Jack Goldsmith with his recent op ed titled, “A way past the terrorist detention gridlock.”  While Marcy and Spencer have already weighed in, I whined until Marcy let me have my own go at this too, because I wanted to provide an alternative route to deal with the “gridlock.”  

Goldsmith’s advice to Obama is to:  (i) keep GITMO open because closing it is hard, (ii) forget civilian criminal actions because they are hard, (iii) forget military commissions because they have no international crediblity and are hard, (iv) get Congress to give the President unchecked and unsupervised powers to engage in forever detentions without respect to guilt or innocence, and (v) use the reality of  forever detentions for the innocent as well as the guilty and other coercion to get detainees to offer up confessions and plea deals and thereby get around the hard parts of civilian criminal suits.   Part (v) includes the caring-compassionate touch of only being recommended if Obama takes the death penalty off the table.  

Despite such awesome[ly bad] advice, GITMO has not proved hard to close because there are not enough coerced confessions and coerced plea deals.  GITMO has proved hard to close because current and ex-Department of Justice lawyers, as well as  current and ex-Presidents and their intelligence apparatus, have found it too politically dangerous to tell the truth. It’s worth noting that throughout Goldsmith’s piece the one thing he never mentions is innocence.  He offers up a lot of advice, but none of it even begins to contemplate the innocent and how they can be protected and released.   

While Goldsmith stops short of saying that our country has a long and celebrated history of lynchings that could be used when trials are hard, he does pretty much advocate that if trials are hard, you just do something else – preferably something that bars any judicial review.  Something like putting human trafficking victims in forever military detention; expanding from the Strawberry Fields (forever) detention facilities we already have to ever expanding concentrated population camps necessitated by his long term solution of granting the President unchecked powers for extra-judicial detentions. For this foray into solving “detainee gridlock” WaPo stops the presses.

Well, let me offer up a counterpoint to Goldsmith’s argument that it is the “abundant dysfunctions in our system for incapacitating terrorists” that has led to not only GITMO (and let’s not forget Bagram) but also to an increase in “targeted” killings and in outsourced renditions which are not “optimal.” He’s wrong.  It has never been the dysfunction of our system that was the problem; rather, it has been the dysfunction ofour Department of Justice and our Presidents that have created GITMO and the “gridlock” associated with it.  

The solutions to the dysfunction are the same now as they were eons ago, and for that matter the same as when we were in kindergarten. We have to face the truth, tell the truth and take responsibility. So here is a short review of a “pragmatic” approach that would begin to address the “detainee gridlock” that perturbs Goldsmith, by using truth and accountability – a way towards the rule of law as opposed to a bypass around law, with no off ramps. 

First, the White House has to acknowledge what much of the world, although not necessarily much of America, knows to be true. Obama needs to publically explain to this nation that, despite the rhetoric that GITMO was a facility reserved for the “worst of the worst” terrorists, it has been, in fact, a destination for many innocent people who were sold to the US or mistakenly captured by the US. He needs to admit we comingled people who had plotted and supported the 9/11 attacks with innocent chefs from London. He needs to admit the White House has had this information since at least August, 2002 when it was provided by the CIA after a review of the detainees at Guantanamo. He needs to release that memo, which has already been mentioned in at least one habeas decision. The “difficulty”  dealing with GITMO will never, ever, be diminished until we tell the truth about detainees who were not invovled in 9/11and take responsibility for what has been done to them.

Second, Obama needs to lay out that in addition to having kidnapped and purchased people who were not involved with 9/11 , the treatment of the guilty and the innocent detainees alike has involved war crimes. He needs to reference and support the findings of Susan Crawford that detainees at GITMO were tortured. He needs to explain that interrogators were sent out with the direction that “no one leaves GITMO innocent” and he needs to explain that under the Geneva Conventions, it is a war crime to transport innocent civilians out of country, to a destination like GITMO or to destinations like our CIA blacksites. He needs to say that our tribunals can never have international credibility without recognizing that we have committed war crimes against some detainees and that we have innocent detainees who are entitled to reparations and apologies. 

Third, the President needs to explain to the nation that it is because we have picked up innocent people as well as terrorists involved in plotting 9/11 and we have treated both in ways that are shameful, that we must have full, fair and transparent trials of anyone we are claiming had something to do with 9/11.  He needs to explain that if we can’t do that – if we can’t allow the innocent to have access to courts and we can’t make a public case against the guilty – then  the terrorists have won because they have rendered America unable to live up to its Constitution and its international commitments.

Fourth, Obama needs to explain that in addition to innocent people and terrorists involved in 9/11, we also have captured people who were not involved in 9/11 but who fought back against invasion of their countries (or who responded to the invasion of a Muslim country) by outside forces and also people who are far from innocent (like drug lords) but who had nothing to do with 9/11. These people need to be returned to their sites of capture, in Afghanistan or Iraq respectively. In Iraq, they need to be handed over to the Iraqi government and in Afghanistan, they need to be turned over to the Afhgan government or to be held at Bagram until our forces return home next year (at which time they should be handed over to the Afghan government the way our thousands of Iraqi detainees were). Those who were fighting back against invasion need to be given all proper prisoner of war status and treatment while they are held in Bagram. Those who are drug lords or were captured while they were engaged in crimes need to be treated as civilian criminals.

Fifth, those who had nothing to do with 9/11 and were not captured in Iraq or Afghanistan are going to be a problem that requires another set of revelations – that we operated in many countries other than Iraq and Afghanistan and those operations included kidnapping or buying humans for a bounty without any proof that they were inovled with 9/11.  Obama needs to explain that we have a duty to these people who had not committed acts against the United States, but who may have been refugees from totalitarian regimes and who cannot be returned now.  

Sixth, the canard of the worldwide battlefield needs to be addressed. Obama needs to explain that while the US is going to fight terrorism and terrorists everywhere, it is a sign of failure and a lack of understanding of U.S. law to suggest that the “world” is a battle theatre, because our U.S. courts have defined that term to mean a place where there is no civilian law.  He needs to absolutely and completely reject any argument that terrorists have forced the closure of our courts or robbed America of the rule of law.  We fought for it, died for it and it lives. And he needs to say that America is not so fearful that it needs to make up peculiar interpretations of civilian or military laws to transform a cook or a driver into a terrorist or war crimnal.  He needs to say that there are many Americans dead and injured and over two million Iraqi refugees  that stand as a living testament to why America should not make life and death decisions based on evidence that was coerced from someone being buried alive or waterboarded.  

Seventh, Obama as Commander in Chief and as chief law enforcement officer of the nation, needs to assert that if Congress fails to provide full and open and transparent trials, it puts our nation at risk.  America is strong and once, faced with the truth, it has many, many more than just a few good men who can handle that truth.   

The way out of “detainee gridlock” isn’t more power to a dilettante White House and dysfunctional Department of Justice and more statutes provding Congressional support for detentions on Executive whim.  It isn’t collecting a worldwide assortment of human specimens to hold in the belief that the rest of the world will at some point become a  Borg colletive that supports the US in its every action without dissent.   That “way past” won’t provide international credibility. That “way past” won’t protect the innocent. That “way past” won’t require leadership from the Presidency. That “way past” will guarantee more and more who hate the US. That “way past” will weaken rather than strengthen America.  That “way past” buries facts and disinforms our citizenry.  That “way past” relies on the destruction of the rule of law. 

The law’s a lot more than words you put in a book … it’s everything people ever have found out about justice and what’s right and wrong; it’s the very conscience of humanity.  There can’t be any such thing as civilization unless people have a conscienceThe Oxbow Incident.

******UPDATED  As bobschact has noted @ 27  I probably need to clarify the seventh item.  Congress has actively blocked funding for closing GITMO and Senators have been working hard to defund civilian trials and transport for those trials.   This, despite the Democratic majorities in both Houses.

  1. bmaz says:

    He needs to absolutely and completely reject any argument that terrorists have forced the closure of our courts or robbed America of the rule of law. We fought for it, died for it and it lives. And he needs to say that America is not so fearful that it needs to make up peculiar interpretations of civilian or military laws to transform a cook or a driver into a terrorist or war crimnal. He needs to say that there are many Americans dead and injured and over two million Iraqi refugees that stand as a living testament to why America should not make life and death decisions based on evidence that was coerced from someone being buried alive or waterboarded.

    Yes, exactly. It has always been beyond amazing that so much effort is placed by the Executive and Congress into undermining that which the country was founded on, and all the soldiers to date have died to protect.

    • pdaly says:

      It has always been beyond amazing that so much effort is placed by the Executive and Congress into undermining that which the country was founded on, and all the soldiers to date have died to protect.

      And ironically, now the politicians use the deaths of soldiers ‘protecting our freedoms’ to “legitimate” that Executive power grab.

  2. Mary says:

    This movie makes a lot of lists of all time greats, but try to imagine the ending-fail if, when the sheriff rides up towards the end he looks at what has been done and says, “oh well guys, I know you acted in good faith, let’s just look forward, maybe go have some beers together.”

    • thatvisionthing says:


      Also, a movie I’d suggest to you as well? Stars in My Crown, 1950, with Joel McCrae, it comes around on TCM from time to time. There’s with a wonderful justice scene at the end. You’ll know it when you see it.

      Speaking of conscience, I sure wish I’d had this…

      The law’s a lot more than words you put in a book … it’s everything people ever have found out about justice and what’s right and wrong; it’s the very conscience of humanity. There can’t be any such thing as civilization unless people have a conscience. The Oxbow Incident.

      … when I was arguing here. All that talk about trying to get some empathy back in justice, when Sotomayor was nominated for the Supreme Court, and nobody thought to say it should have been there all along, in juries, and why isn’t it anymore?

  3. earlofhuntingdon says:

    [O]ur nation is still flummoxed about what to do with captured terrorists.

    As you elegantly respond to this opener from Cap’n Jack, it’s not our nation that is flummoxed about truth, justice and the American way, it’s the politicans, their legal and academic courtiers, and a solid chunk of the judiciary that has lost its way, or is happy to embrace a Cheyneyesque lawless rule for the potentates.

    Lord Acton’s pithy observation that power corrupts and absolute power corrupts absolutely once described the kind of government America aspired not to have. Our elites, inclding some 200 of our 400 odd billionaires, have opted for a reversion to the Sun King’s “l’etat, c’est moi”. Ultimately, Louis’s form of government did not end well, and not just for Jean-Paul Marat. Perhaps the growth of the surveillance state’s army of private intelligencers and mercenaries is a rare attempt by our elite not to allow history to repeat itself. ‘Tis a pity all that energy is being used to divide us rather than to move us forward.

      • earlofhuntingdon says:

        Traveling on the left coast, with just enough time to monitor but not comment. Nice bit of work on Kagan’s de facto absence from the Supremes from you and Glennzilla. Looking forward to his book salon later today.

            • bobschacht says:

              Hey, EarlOH, I’m in Flagstaff, just a few miles up the road. If you’d like to get together, gimme a buzz at bobschacht AT infomagic DOT net and I’ll buy you a beer.

              Bob in AZ

              • earlofhuntingdon says:

                I whisked through Flagstaff on the way back to the left coast. Sorry not to have had this chat earlier. If I make it back, I’ll get in touch with you and bmaz ahead of time.

  4. earlofhuntingdon says:

    Goldsmith doesn’t like military commissions because they aren’t efficient and still require some proof, some bastardized level of due process, burdens Mr. Goldsmith seems to think the state ought not to have. If that’s the standard we can expect from one of the country’s and Harvard Law School’s top lawyers and academics – thanks, in part to Elena Kagan – then we do need a bigger boat to solve these problems.

  5. DWBartoo says:


    As always, you offer hope, reason, compassion, understanding, and rational perspective, all those things which lead to, and define, justice, for which I offer my heartfelt, and constant, appreciation.

    You are offering a reasonable, mature, and responsible return to the rule of law.

    A reasonable, mature, and responsible society would insist upon nothing less.

    A reasonable, mature, and responsible “leadership” would be wisely willing to follow your suggestions.

    However, our “society” is careless, and the “leadership” does not care, about the rule of law.

    Were the decision Obama’s alone, that might be a small reason for hope, yet both the Congressional “branch” and the Judicial “branch” are broken, and bowed to money and power, both directly tied to the “effort” and “policy” of endless war and a global “battlefield”, especially as it may be denied and, or, outsourced through “hidden” and “secret” channels to guarantee “plausible” deniability …

    All three “branches” of the possibly magnificent specimen of “democracy” this weak and floundering nation might have achieved, are but part of a withered and dying shrub.

    Were your advice heeded, some parts might well be saved, to flourish yet, possibly, for the first time …

    However, too many powerful people are complicit, now, in “government” and among those who “service” it, thus, there can be no turning back.

    What horrors still await?

    That question, “How much worse shall ‘it’ all become?” only time, and such “secrets” as are “disclosed” may tell …

    Were the choice to do as you suggest Obama’s alone, I suspect he would not and could not rise to it, for, at heart, he seems a small man, and in deed, a cowardly man, not even a “nearly” man, as he does not, sadly, come close to understanding responsibility or consequence.


  6. earlofhuntingdon says:

    Mr. Obama doesn’t want a “way past” or even a “way forward”; he’s happy with the way things are, one reason Kagan’s on the Supremes, Johnsen is not head of OLC and the announcement of Elizabeth Warren as acting or permanent head of the consumer financial services commission will always be just around the corner.

    It’s nauseating to observe that all of the Beltway is now devoted to avoiding implementing your self-evidently useful recommendations, regardless of whether Republican or Democratic parties are in power.

  7. Mary says:

    Ultimately, Louis’s form of government did not end well

    You have the gift, EOH.

    DW – I’ve always fought the feeling that he is all poses with little to no substance. He’d inspired so many really good people who I think do have lots of substance, though. :-( So much opportunity wasted.

    • earlofhuntingdon says:

      Whatever his motivation, Mr. Obama has let slip a crucial moment for positive change in a country tired of Mr. Bush’s lies and excesses, his profligacy and his wars. That alone justifies describing his tenure as an abject failure.

      Rather than pull us back from the brink, Mr. Obama is building a concrete platform cantilevered over it to keep us there. He seems content that Mr. Bush has let slip the dogs of permanent war, confident that he or people over whom he has inadequate control can put down any that turn on their master.

  8. earlofhuntingdon says:

    You have to hand it to Goldsmith for his ability to construct this kind of false framing:

    The abundant dysfunctions in our system for incapacitating terrorists have led to increased reliance on targeted killings and outsourced renditions, neither of which is optimal from an intelligence-gathering perspective.

    The intentional design limitations of constitutional government are mistakes that must be overcome, not rules of the road that keep us veering off into crowds or over a cliff. The problem with targeted killings is that they are sub-optimal for gathering intelligence, not that they might be reprehensible, mistakes that worsen our problems, and illegal under multiple regimes of domestic and international law.

    Mr. Goldsmith missed his calling; he should be a criminal defense attorney for Goldman Scratch.

  9. Mary says:

    One thing I wondered about with that statement of his – we’ve had a certain amount of press on Obamaco’s assassinations and we’ve had Obama pretty much on record with wanting to keep powers of extraordinary rendition (hand offs to other countries for torture and disappearing). Goldsmith seems to be saying that outsourced renditions have been ratcheted up under Obama.

    So who is getting picked up and where are we sending them? Still Egypt? More Jordan? African nations now?

  10. skdadl says:

    Mary, you are an international treasure. I haven’t read all the other comments yet and I have a couple of details to contribute, but that is a simply brilliant post. I am so grateful to you for helping me to think clearly over the last several years, for your incredible memory, and for your spirit as a citizen of the world who cares about all human beans and the edifice of international law we thought we were building together.

    One quibble: I srsly doubt that anyone is actually “leaving” Iraq this year or Afghanistan next.

    In memory of Arron Dack, who died in the North Tower this day in 2001, leaving his wife, two little kids, and his mother Selena, my dear friend. It’s still hard for everyone.

      • skdadl says:

        Drat. I misspled Arron’s name. How could I do that?

        He really was gorgeous as a teenager. I only met him a few times, but he was stunning, and I adore his mum. He didn’t normally work at the WTC; he was a techie who had gone with a couple of colleagues, one other guy, one woman, to a trade show (or something) at or just below Windows.

        What can you do, eh? A million have died since then in Iraq. I didn’t know that day about Maher Arar or Omar Khadr — actually, they didn’t know that day what was about to happen to them. And Arron’s mother knows all that too.

        Why is it that we all know the truth but we can’t do anything about it?

  11. bmaz says:

    So who is getting picked up and where are we sending them? Still Egypt? More Jordan? African nations now?

    That, my dear, is a secret!

  12. powwow says:

    Superb closing, Mary. Thank you for providing this principled perspective.

    One of the unavoidable conclusions forced by Jack Goldsmith’s specious rhetoric in his Washington Post op-ed is that the Bush and Obama presidencies combined have released almost 600 “terrorists” (aka “alien unlawful enemy combatants”) even though the armed conflict – whose existence, and supposed participation in by those enemy “terrorists,” was used to justify their wartime capture and detention ‘for the duration’ – continues to rage.

    Six hundred freed Guantanamo “terrorists” represents about 75% of all foreigners detained under military guard since 9/11/2001 at Guantanamo Bay Naval Station, Cuba. And less than 38 of those almost 600 “terrorists” were granted their freedom by federal district judges via habeas corpus petition. The rest were all unilaterally released by the Commander in Chief of our Armed Forces – and the vast majority of those freed “terrorists” were released during President Bush’s terms in office.

    Next time, Goldsmith, why not try giving your readers “the whole truth, and nothing but the truth” for a change – thereby preventing the need for busy people like Mary to clean up and correct the half-truths and deliberate distortions about America’s Constitutional form of government, that your widely-disseminated screeds randomly deposit in their wake.

    • bmaz says:

      America is now grounded up the proposition that it is better to indefinitely imprison 600 innocent men than to have one potential guilty man running around somewhere in the world.

      As I said in the Zeitoun post, it is who we are now.

      • KenMuldrew says:

        America is now grounded up the proposition that it is better to indefinitely imprison 600 innocent men than to have one potential guilty man running around somewhere in the world.

        From Cheney’s one percent doctrine to the 0.167% doctrine; how far this nation has fallen.

        Mary, thank you for this plea for justice.

        Of what use is the power to crush people by the thousands if one does not also possess the power to free the innocent? The willing suspension of justice shames the powerful far more than it does the weak. It shames and degrades the humanity of us all.

        • thatvisionthing says:

          Of what use is the power to crush people by the thousands if one does not also possess the power to free the innocent? The willing suspension of justice shames the powerful far more than it does the weak. It shames and degrades the humanity of us all.

          What a great comment. Thank you. And it goes so well with Mary’s second Ox Bow clip.

          And Mary, echoing everyone’s thanks here to you. You might appreciate this, it could have been written yesterday but it’s actually from 2008, by Meteor Blades on Daily Kos, about a Greenwald piece on a Goldsmith op-ed:

          Torture Double-Think in the Media

          The Goldsmith piece is a loathsome essay in double-think and double-standards, which is presented in an astonishing deadpan. As Greenwald points out, this remarkable piece was published in a newspaper in a country that glories in its tough-on-crime approach and currently imprisons a larger proportion of its population than anywhere else on earth.  

          Yet the same political establishment that has created and continues to fuel this incomparably merciless justice system has made themselves exempt from the rule of law. When they flagrantly violate even the most consequential criminal prohibitions — laws criminalizing torture, spying on American citizens, obstruction of justice — it’s only the shrill rabble (the “incendiary Democratic base”) who would possibly believe that they should be held accountable and investigated, let alone prosecuted and imprisoned.

          “willing suspension of justice” … “incomparably merciless justice system” …

          Is Michelle Obama still proud of her country? I keep wondering.

      • posaune says:

        This and your Zeitoun post make me weep. Really weep.

        I remember in the 1960’s, my dad, a physician (long story via GI bill), took me (age 7, with pigtails) with him on his weekly volunteer work seeing patients in the prison and parole medical clinic. This was our weekly time together, driving to St. Louis. I questioned him incessantly in the car on the way home. What did they do to go to prison? Why was it unfair to that man? Why do you think he was innocent? etc. etc. Until one day, I asked, as a 9-year old, “isn’t it better to get all the people that might have done a crime in jail — then you know it’s safe.” I will NEVER forget what happened next. My dad pulled off the road, stopped the car, and we got out and sat in a corn field. And he told me to never forget this: “Far better that a guilty person be free than to imprison an innocent man. It hurts all of us when injustice is done.”

        I grieve so deeply over who we have become.

    • Mary says:

      There isn’t any good way to explain the releases when the “basis” of the detention remains unaltered, is there? Except, of course, that they never should have been there to start with.

  13. bobschacht says:

    Excellent diary! I was with you, cheering every step of the way, 1-6, until I got here at step 7:

    …if Congress fails to provide full and open and transparent trials, it puts our nation at risk.

    Congress???? Did I miss something in your previous steps?
    I thought that the Courts are where trials took place.

    Bob in AZ

    • Mary says:

      You’re right – but Congress has blocked what effort there was to bring the trials by blocking funding for transport and the trials.



      I may not have said it very artfully, but for now, Congress has blocked funding to close GITMO (thank you, Dems) and been working on blocking funding for transport and trials. I probably was meaning to type “provide for” but that might not have clarified it that much.

      • bobschacht says:

        Thanks for the clarification. These details should be added to your post, because Congress’s role in preventing sensible solutions deserves to be highlighted. Thanks for including it in your list.

        Bob in AZ

    • phred says:

      In addition to Mary’s response, just thought that I would add that it was Congress that passed the Military Commissions Act in the first place. It needs to be repealed immediately.

      Mary thank you for your outstanding post. I couldn’t agree with skdadl more or say it better, so I will simply let her speak once again for me:

      Mary, you are an international treasure. … [T]hat is a simply brilliant post. I am so grateful to you for helping me to think clearly over the last several years, for your incredible memory, and for your spirit as a citizen of the world who cares about all human beans and the edifice of international law we thought we were building together.

  14. wavpeac says:

    Mary: Excellent. This is what a principled leader would do. The path less traveled is not always the easiest path. But it always results in effectiveness. If Obama had taken this path, the beginning would have been difficult, but we would be facing a different nation and Obama would have led us down the path to truth.

    it’s so sad, knowing that no matter what that man does now, his legacy is all about covering a big lie.

    • Mary says:

      I do think if he had done even a part of this during his first days in office, we’d be on a different track now. With all the attention he was getting, to just affirmatively state as President that not everyone at GITMO was a terrorist and we have a responsiblity to face that truth – that would have been huge imo.

    • posaune says:

      Thanks wavpeac. The path to truth.
      What a tragedy. Even more so to think that BO had the young generation in his palm.
      He could have TAUGHT them how to speak the truth and passed on a legacy of thinking and acting.
      What a loss. He’s abandoned them. Now all they have are student loan debts, unemployment, and no stake in the future. Until they take to the streets. Tragic.

  15. donbacon says:

    bought and paid for

    AP News: They fed them well. The Pakistani tribesmen slaughtered a sheep in honor of their guests, Arabs and Chinese Muslims famished from fleeing US bombing in the Afghan mountains. But their hosts had ulterior motives: to sell them to the Americans, said the men who are now prisoners at Guantanamo Bay. Bounties ranged from $3,000 to $25,000, the detainees testified during military tribunals, according to transcripts the US government gave The Associated Press to comply with a Freedom of Information lawsuit. A former CIA intelligence officer who helped lead the search for Osama bin Laden told AP the accounts sounded legitimate because US allies regularly got money to help catch Taliban and Al Qaeda fighters. Gary Schroen said he took a suitcase of $3 million in cash into Afghanistan to help supply and win over warlords.

    They’ve been kept like animals for nine years. If they are released, will they simple forgive and forget? Would you?

    • cbl2 says:

      omg! how truly wonderful to see you here

      about that “smartest lawyer” – one of my fondest FDL memories is of LHP talking about Mary’s mad skills in an attempt to dissuade some smart ass from taking Mary on. believe there’s a grease spot with his name on it somewhere in the archives

      man, how cool to see you here

  16. Jeff Kaye says:

    How wonderful to read Mary’s work. Such pleas for decency and the rule of law, and such sound logic. I’d hope we’d see more, for those times when EW and bmaz are down or otherwise occupied.

    I thought this a quite hopeful supposition: “…and in Afghanistan, they need to be turned over to the Afhgan government or to be held at Bagram until our forces return home next year.” I don’t think we’ll see forces return home next year. Bookmark this and tell me later how wrong I am.

    I’ve lost all faith in this government, though not in everyone in government. Perhaps the latter will find their way to help us out of the moral, political and legal miasma the quest for worldwide empire has entailed. Maybe they’re reading your essay right now.

    One more thing Obama can come clean about: that they used Guantanamo has a huge experiment, against all laws, ethics, and moral codes available to we poor humans, and bravely fought for over the years (as you point out). I’ve stumbled across some information that will further press the case on this point, and am working on that story right now. It’s an important part of the Gitmo story, and speaks to the point of why they are not closing, and can’t close the facility, or switch detainees to the civilian courts. Evidence of crimes is out there.

    Love the Ox-Bow Incident, and glad to see you point to the literary and cultural history that has been handed down over the generations.

    Wonderful work, Mary.

  17. cbl2 says:

    now Ms Mary, I add my sincere thanks.

    irrefutable proof that that “conscience” is still with us can be found in these threads – it is a privilege for a lay person like me to read them

  18. Mason says:

    Thanks, Mary, for saying what’s been on my mind in bits and pieces. You put it all together for me and I stand in awe.

  19. tjbs says:

    When dick said we were to go to the dark side that was the suspension of the rule of law.

    It was the total subversion of the constitution leading to Torture/ Murder/ TREASON and nothing less.

    Many thanks Mary for your thoughtful input at all times, much admired.

  20. pdaly says:

    Great job, Mary.

    This needs to be read aloud into a microphone from the steps of the Lincoln Memorial. Today and every 9/11.

    • fatster says:

      I’ve been trying to put appropriate words together to adequately express my appreciation of Mary’s wonderful article, only to see you’ve already done it. So, I echo your remark: “This needs to be read aloud into a microphone from the steps of the Lincoln Memorial. Today and every 9/11.”

  21. masaccio says:

    I love this. I want to live in a country that would deal with its mistakes honestly, not a nation afraid to hold anyone accountable for crimes.

  22. gtomkins says:

    That slight matter of belling the cat

    The obvious problem with all of the items on the list of things we need to do if we are to have justice in this matter, is that all of the people who would have to do these things — the president, the Congress, our federal bench (with a few honorable exceptions), and let’s not forget We the People — are the war criminals in this case, the accused and guilty party for all the suggested actions.

    Perhaps there was some window immediately after Obama took office, for there to be a sustainable pretence that it was all the outgoing administration’s fault, that Congress wasn’t told the full story, etc., etc. This would have been a lie, of course, but perhaps it might have been pulled off by virtue of the administration’s control over classified information. But perhaps this approach wasn’t practical, presumably because the old administration had too many friends in low and high places in the security apparatus for there to be any hope of the new admininstration controlling the proof of much more widespread guilt in this matter.

    Practical or not at the outset of the new administration, it clearly is no longer possible for this adminstration to come clean. They have endorsed and continued the crimes.

    There really is a gridlock on how to proceed in this matter. Goldsmith, of course is projecting when he identifies any sort of dilemma over what justice requires us to do with the GITMO detainees. Of course they need to have all the actions listed done on their behalf, and that need is clear and uncontroversial. The gridlock and dilemma in htis matter is all concerning what we are to do about the real war criminals here — us.

  23. bobschacht says:

    Bruce Fein wrote this in one of his comments over at the Book Salon:

    We need 50,000 civics teach-ins throughout the nations in libraries, community colleges, auditoriums, etc to embue citizens with the excitement and duty of self-government and an understanding that a nation of sheep with beget a government of wolves. In addition, citizens must be taught a moral duty of active civic involement in government because the politically idle or indolent invite government tyranny or overreaching. For every set of eyes and ears that are not watching and criticizing government wrongdoing or folly, to that extent the freedom or liberty of all is imperilled because it means a greater chance of government lawlessness with impunity.

    This is something each one of us can do! Partner with local colleges, etc. If there’s no college, find another civic minded partner. Don’t make it a partisan thing.

    Bob in AZ

  24. croghan27 says:

    These people need to be returned to their sites of capture, in Afghanistan or Iraq respectively. In Iraq, they need to be handed over to the Iraqi government and in Afghanistan, they need to be turned over to the Afhgan government or to be held at Bagram until our forces return home next year (at which time they should be handed over to the Afghan government the way our thousands of Iraqi detainees were).

    Mary – the Iraqi government seems to have some real pretensions toward being a true representative of the Iraqi people, but that in Afghanistan is a function of our dark side. We made it up, we put it in place and we maintain it in place with billions of dollars and thousands of lives.

    Whom shall the Afghan prisoners be turned over to? Karzai, the last best hope of the “northern alliance” of drug dealers and thieves? Perhaps the Taliban, who by virtue of winning a civil war have at least a cloak of legitimacy, something foreign to what we support now.

    That they torture is without question – and therein lies yet another war crime .. turning over prisoners to people that will torture them, as well, is an offense and forbidden by Geneva.

    To misquote Leonard Cohen: (We) “are locked into your suffering and (our) pleasures are the seal.”

    • croghan27 says:

      In other places there would be a smiley that I could post showing me slapping myself up side the head. Before saying anything in that post I should have congratulated Mary for a well considered and cogent response to the waffling of Obama on so many, many important matters. Thank you for that, Mary.

  25. lareineblanche says:

    Wow, excellent discussion.
    This is particularly important :

    Sixth, the canard of the worldwide battlefield needs to be addressed. Obama needs to explain that while the US is going to fight terrorism and terrorists everywhere, it is a sign of failure and a lack of understanding of U.S. law to suggest that the “world” is a battle theatre, because our U.S. courts have defined that term to mean a place where there is no civilian law. He needs to absolutely and completely reject any argument that terrorists have forced the closure of our courts or robbed America of the rule of law.

    – because if the distinctions are sufficiently blurred between “civilians” and “combatants”, we reserve the right to basically target anyone, anywhere. These loose interpretations of terms have been the open door to so much abuse.

    As others, have said, Obama cannot afford to bring this into the light without jeopardizing his political career. Saying “we fucked up – we were wrong” is tantamount to ending his reelection hopes, he’ll never do this. Politics over justice.

    • thatvisionthing says:

      As others, have said, Obama cannot afford to bring this into the light without jeopardizing his political career. Saying “we fucked up – we were wrong” is tantamount to ending his reelection hopes, he’ll never do this. Politics over justice.

      Gees, I thought that’s why we elected him in the first place, trying to get someone in office at last who WOULD say “we fucked up — we were wrong.” Such low-hanging fruit, you’d think someone would grab it.

  26. BayStateLibrul says:

    Thanks Mary.

    Excellent reporting and analysis.

    Calling Obama’s hand.

    “It is incumbent on those who accept great changes to risk themselves

    on great occasions.” Thomas Jefferson.

    Unfortunately, Obama plays a risk-avoidant game.

    It is a deadly game, and will eventually pay a price….

  27. cregan says:

    To me, the big mistake was the Government not naming the actions engaged in as they actually were.

    It was a war they were engaged in, and those taken were actually prisoners of war. Therefore, able to be detained until the conflict was over, but also subject to the rules regarding such POW’s.

    Certainly, we would have treated these people better than any entity which opposed us through history–The north vietnamese with the Hilton, North Korea, Japan with the Bataan March, Germany with their camps, the South with Andersonville, etc. etc.

    But, they didn’t want to give them the POW rights, and THAT created the mess we are in today.

    They wanted to hold them like POW’s, yet not call them POW’s. It is only then that you get into complications.

    To me, I see the logic in needing to holding the actual “warriors” until the conflict is over. (sort of like the the German soldier let go in Saving Private Ryan. They thought they were doing a humane thing, only to have the guy come back and show them a different version of humanity)

    This is separate from renditions and issues of that type.

    • phred says:

      Certainly, we would have treated these people better than any entity which opposed us through history

      On what basis do you make that claim, when it is demonstrably false?

      We tortured people to death. The whole point was to not protect them as would have been required for POWs. That was the exact problem that sent them through the Looking Glass straight into the arms of the Red Queen in the first place. At this point any argument laid on a foundation of “holier than thou” is ludicrous.

      • skdadl says:

        and cregan @ 59: with qualifications, I think that cregan is making a good point. Inventing a category called “illegal enemy combatants” was a logical and propaganda trick. It was just a trick and the courts finally said so, but a lot of people fell for it in the meantime, and I’m not sure that it didn’t move the Overton window far enough to the right that maybe we won’t see the courts defending the basic principles (Geneva, Magna Carta, etc) much longer. (Could someone else sort out my double negatives there?)

        I agree with phred that Westerners have an irrational tendency to assume that we are less nasty than everyone else. We’re not. We’ve all produced our torturers, and we are in greatest danger of producing more when we pretend that we’re not like that.

        • cregan says:

          Thanks. You did get the main point.

          Once they began down that road, wanting POW’s but not calling them that or giving them POW rights, THAT lead to all the other problems, whether torture, odd legal systems and the rest of it.

      • cregan says:

        Yeah, you are right.

        We gassed people like they did in Germany–but it was well covered up.

        We starved people like in Vietnam–but that got covered up too.

        We marched these guys long distances with no food so that hundreds died–that got covered up too.

        We’re no better than any of those Nazi’s or others. We’ve just covered it up better.

      • cregan says:

        Better yet, tell me, who would you rather be the ‘guest’ of:

        Guantanimo (sp)


        Hanoi Hilton

        By your post, I am guessing you’d pick Auschwitz or the Hanoi Hilton.

        But, of course, my post said we’d treat them better. I didn’t say we’d treat them perfectly–though we should.

        Aside from that, the main point was that the situation got out of hand and complicated because the government tried to keep them as POW’s but not give the the rights of POW’s.

        • phred says:

          Despite your overwrought response, you didn’t actually answer my question.

          You said “certainly we would have treated these people better” and yet we both know this isn’t true.

          We crucified a man to death.

          We froze a teenager to death.

          We suffocated a man to death.

          Perhaps you view such actions through a prism of scale. I view it through the prism of an individual. Does it matter how many are crucified, suffocated, frozen, or buried alive if you are the one it happens to?

          Is it somehow morally superior to countenance torture and murder, so long as the numbers are kept below some threshold? This is an argument I cannot accept.

          • cregan says:

            First, I can see your mind is made up no matter what I might say.

            But, I find it hard to believe you really think that a systematic, scientific and totally remorseless machine that was created by human beings to purposely to kill millions is close to what you say happened in your post.

            It’s sort of like the ‘three strikes’ view some law and order buffoons make that a guy stealing a piece of pizza deserves the third strike and sentence same as the guy who went into KFC, gunned down the clerk and stole the money from register.

            Sanity is being able to detect and see differences in things. Insane people see all things the same; “The Martians are everywhere!” “Everybody is against me.”

            In addition, you TOTALLY missed the point. It is NOT saying these guys were POW’s that resulted in every one of the abuses you mentioned. Had they been classified as POW’s, none of it, or at least nearly none of it would have happened.

            • phred says:

              If I missed your point, perhaps you didn’t make it well in the first place. My complaint was your declarative statement that we would treat people better, which flies in the face of what we know to have actually happened.

              You are the one insisting on drawing historical parallels that I did not make.

              Re-read that list that eoh posted for us 83, perhaps my mind is not the inflexible one here.

              • Petrocelli says:

                Whoever argues your points have no knowledge of U.S. foreign policy over the past 5-6 decades …

                EDIT: Really, really excellent post, Mary. I’d send it to ObamaCo, if I thought they would bother to read it.

            • phred says:

              It’s sort of like the ‘three strikes’ view some law and order buffoons make that a guy stealing a piece of pizza deserves the third strike and sentence same as the guy who went into KFC, gunned down the clerk and stole the money from register.

              Actually, it is nothing of the sort.

              I was comparing murder to murder, torture to torture. The difference is in scale, which I thought I made clear enough in #74.

              Your example above is comparing an inconsequential theft to armed robbery and murder.

              • cregan says:

                Again, there is no changing the mind of someone who thinks the systematic, planned out action to the “T” to murder of millions is in anyway comparable to the examples you gave in your post.

                Again, I ask, whose POW camp would YOU rather be held in; one run by the Nazi’s or the US? Again, a POW camp designated as such.

                Now, if you can find that we murdered people in POW camps we had in Germany or France or in the Pacific on some wide spread officially sanctioned way, then you might have some point.

                It’s like some guy claiming how terrible we are compared to Hussein. Then you ask him, would you rather live in the US or Iraq under Hussein? And, do you think you be able to make bad comparisons of Hussein in public while you were there? Yeah, no, I didn’t think so, and yeah, I do understand that you would rather live in the US than under Hussein.

                So, of course, you are right, we were worse and that’s why you’d rather live here than there.

                By your logic, the guy who shoots someone at the gas station and they die is just as bad as Hitler. Therefore, we’ve got a lot of Hitlers running around.

            • skdadl says:

              Had they been classified as POW’s, none of it, or at least nearly none of it would have happened.

              cregan, how are the inmates in your ordinary prisons classified?

  28. JThomason says:

    Mary, thank you for your always sharp eye for the factual matters belying the murky eye wash the oligarchy ceaselessly advances. The references to the historical failures of arbitrary oppression in comments are spot on. In my view this centralizing authoritarian thrust will not dissipate until a new economy consolidates.

    • skdadl says:

      In my view this centralizing authoritarian thrust will not dissipate until a new economy consolidates.

      I wish this weren’t true but it probably is. And I’m not going to live to see it. Oh, bricklefritz.

  29. fatster says:

    Journalist: Women raped at Abu Ghraib were later ‘honor killed’

    ‘”In Abu Ghraib, women were tortured by the Americans much more than the men,” Lima Nabil told The Independent. “One woman said she witnessed five girls being raped. Most of the women in the prison were raped – some of them left prison pregnant. Families killed some of these women – because of the shame.”‘


  30. Mary says:

    I can’t believe I missed Imm!

    You guys have been way too kind. It’s basically not really “my work” – Jeff Kaye @ 37 is right, I lifted what had been part of our cultural history and inserted it here. I didn’t have to find points to resonate – I took the ones that we’ve had for years and recycled them here.

    @51 – I like that, being a nation of sheep will beget a government of wolves.

    Croughan and Cregan (@ 59) both have serious points. They both are worthy of real focus and are kind of interrelated. I’m scheduled for heavy duty yard and barn work today and can’t really treat them as seriously as they should be, but I’m glad they were raised.

    @67 – this ends up being the kind of pointless thing that goes nowhere – would you rather be a soldier at the Hanoi Hilton or a civilian whose family and self are tortured and murdered via the US gov’s Project Phoenix? Would you rather be an Auschwitz victim, or a teenage girl raped at Abu Ghraib then killed? Seriously – those aren’t the only options. The only thing that really has a commonality is that when one nation invades another (and this goes to your 59 that is more serious and I can’t address as it deserves here) and then occupies it, there will be atrocity.

    In part – what differentiates GITMO from Auschwitz is the existence of what has somehow come to be called “the left” here in the US. The more the embrace is of Glen Becks and Fox News and the more insidious Cap’n Jacks – the more pavers you put on the road to soemthing like an Auschwitz.

    So its not so much if GITMO is “better than” Auschwitz or Hades for that matter, it’s that we have GITMO – now what path do we choose? One that takes closer to gulags and concentration camps or one that takes us towards application of law, civilian where appropriate and military where appropriate.

    I beat this too much, but I think language is important. We need a path that takes us away from “homeland” and “war on terror” and a soldier’s creed that harps on “warrior, warrior, warrior and towards “America” and “criminals” and a soldier’s creed that restores the focus on “honor.”

    We just spin wheels in the mud with arguing over whether where we are is better or worse than other places we’ve been or others have been – we only get out of the mud when we look at where we want to be and how to get there.


  31. cregan says:

    There is one wrongly oriented angle on the original post.

    The terrorist don’t “win” from any of these things outlined in the post. This totally misunderstands that attitude and motivation of the terrorists.

    They do not care if the US goes down with all rights in tact or with only a few, so long as it goes down by any means.

    They are no trying to get us to limit the rights of US citizens, they don’t care about them. They are trying to destroy the US.

    So, they would be vastly disappointed if the the US survived, even, at worst, like a police state. They would not consider a US in existence with few rights as any kind of victory.

    It is the existence they care about, not the rights.

    YOU care about them. So, properly, you would lose if rights are curtailed. The terrorists wouldn’t “win.” It’s not even a game they are playing.

    • bmaz says:

      They have flat stated that they consider our hysteria and forfeiture of what we were founded on to be a HUGE victory. I believe them on this.

      • cregan says:

        The hysteria, meaning fear, yes, I would agree. The other is propaganda. You ever heard of Tokyo Rose and such and the attempts they made to discourage people by talking about they knew we cared about? They don’t give a shit about rights or no rights–except in ways it can help them reach their ultimate goal (which I am not saying they can or will).

        And, I don’t recall seeing any higher up say this.

        I’m not saying WE don’t care about it. I’m saying they don’t give a crap about it.

    • phred says:

      So much for the “they hate us for a freedoms” argument, then huh?

      From what I’ve read, their motivation has a lot more to do with getting foreigners out of their countries than it has to do with our existence, but that doesn’t fit with your worldview. If getting out of their country solves the problem, then endless war must end. If one holds onto the myth that they want us to no longer exist than war can go on and on and on and on…

      Once again, I question your earlier assertion of any moral superiority on our part.

      • bmaz says:

        When you are pondering whether the US is relatively better than Hitler and Nazis, the North Vietnamese, the North Koreans etc., you have already lost the moral argument. One person it is really hard to say we are better than is Sadaam Hussein as we have killed and tortured as many Iraqis as he did. Good thing there is not a bigger power to make regime change on us for our crimes, just like we did to Hussein.

        • phred says:

          When you are pondering whether the US is relatively better than Hitler and Nazis, the North Vietnamese, the North Koreans etc., you have already lost the moral argument.

          Amen to that.

        • cregan says:

          Bmaz, I admire you, but in this case, as far as I know, Hussein was the motivating force behind at least 1.5 million being killed.

          And, there is no evidence he would have not kept on doing it.

          • bmaz says:

            My understanding is it is somewhere around 400,000-500,000 unnatural deaths from Sadaam’s rule in Iraq over a period of nearly 25 years. By contrast, it would appear that there have been somewhere between 300,000 and 600,000 unnatural deaths as a result of the US invasion, war and occupation of Iraq. It is not just souls we killed, but those that would be alive but for our immoral action. It should also be noted that the attrition rate under Sadaam was way down in his last several years in power and that many of the deaths under him were in relation to the Iran-Iraq war that we backed him and prodded him in. Then you throw in the fact that we have engaged in the very same illegal detention and torture we accused him of, I see no daylight whatsoever between the US and Sadaam Hussein.

                • cregan says:

                  You are right. The thread is off track. I made an offhand comment about the fact that we treat POW’s better than most–as part of a large point that the origin of the baloney that has happened re:Gitmo began when the US wanted to keep the other side as POW’s but didn’t classify them as such and give them the rights of a POW.

                  The POW camp part was also taken off course in that people began talking about Gitmo and associated camps and what happened there–exactly the thing I said that NOT declaring them POW’s had caused.

                  The two got confused.

                  Actual POW camps as run in WWII

                  Gitmo and others created from NOT declaring the occupants POWs.

                  As if I had said, “Gee not having them be POW camps made them into hell holes, and by the way, weren’t Gitmo and rest wonderful places?”

              • bobschacht says:

                I think the over one million due to the Iran-Iraq war, begun by Hussein…

                Wasn’t that Dick Cheney who was egging him on, as an official representative of the U.S. Government?

                Bob in AZ

                  • bobschacht says:

                    Thanks; I thought they sent Cheney over, too, as part of the same initiative, but I can’t find any sources for that. As Pres of Halliburton, however, Cheney did make oil deals with Saddam.

                    Bob in AZ

                    • thatvisionthing says:

                      I’m sure they’re all in it going way back, Rumsfeld, Cheney, Bush people, neocons. In fact, one of the things I’ve wondered about, since reading the ACLU PDF transcript of Khalid Sheikh Mohammed’s Guantanamo CSRT hearing, is wtf was redacted when he was talking about something that happened in the 1970s? Mr. Mohammed gives a long statement, and since I’m still in charm with EoH’s recital of the Declaration of Independence, I kind of see the statement in that light, a declaration of a history of grievances and reasons. And at the end, p. 24, he says (I did minor cleanup):

                      DETAINEE: So, finally it’s your war but the problem is no definitions of many words. It would be widely definite that many people be oppressed. Because war, for sure, there will be victims. When I said I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and the kids. Never Islam are, give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exception of rule when you are killing people in Iraq. You said we have to do it. We don’t like Saddam, But this is the way to deal with Saddam. Same thing you are saying, same language you use, I use. When you are invading two-thirds of Mexican, you call your war manifest destiny. It up to you to call it what you want. But other side are calling you oppressors. If now George Washington. If now we were living in the Revolutionary War and George Washington he being arrested through Britain. For sure he, they would consider him enemy combatant. But American they consider him as hero. This right the any Revolutionary War they will be as George Washington or Britain. So we are considered American Army bases which we have from seventies in Iraq. Also, in the Saudi Arabian, Kuwait, Qatar, and Bahrain. This is kind of invasion.

                      But I’m not here to convince you, is not or not, but mostly speech is ask you to be fair with people. I’m don’t have anything to say that I’m not enemy. This is why the language of any war in the world is killing. I mean the language of the war is victims. I don’t like to kill people. I feel very sorry they been killed kids in 9/11. What I will do? This is the language.

                      Sometime I want to make great awakening between American to stop foreign policy in our land. I know American people are torturing us from seventies. [BLOCK OF REDACTION] I know they talking about human rights. And I know it is against American Constitution, against American laws. But they said every law, they have exceptions, this is your bad luck you been part of the exception of our laws.

                      What the hell is the [BLOCK OF REDACTION]?

    • croghan27 says:

      They do not care if the US goes down with all rights in tact or with only a few, so long as it goes down by any means.

      Do they care if America goes up, down or otherwise? …. they mostly care if America goes away. They do not “hate us for our freedoms” – they hate us because we are there.

      The old British quip affectionately spoken of American soldiers during WWII was,

      the problem is they are over paid, over sexed and over here”.

      Drop the affection and the first two.

      • earlofhuntingdon says:

        “Overpaid, overdressed, over-sexed and over here”.

        As you say, “they” – those whose homes and towns we occupy and whose resources we take out of greed, fear and imperial hubris – do not hate us for our freedoms. They hate us for confusing our freedoms with the right to take away theirs under the absurd claim that we are making them or us safer.

          • thatvisionthing says:

            The Do’s and Don’ts section is particularly humorus. The GI’s were told to be friendly, not to intrude, don’t show off or brag or bluster and if a GI is invited to eat with a family don’t eat too much, otherwise you may eat up their weekly rations.

            :- #

            just longing for my grandpa’s Oldsmobile

      • cregan says:

        That’s kind of odd since we were not in Iraq or Afghanistan when they attacked.

        Even more odd, since we helped Bin Laden push out another foreign power–the Russians. Under your theory, they would have been very grateful to us.

        I never said they hate us for our freedoms. I said they don’t care about our freedoms, one way or the other. OK, yes, they do care when a lack of our freedoms applied to them keeps them from returning to fighting. But, they could care less how our freedoms in reference to us are more or less than a few years ago.

        And, besides. in the long run, those freedoms won’t be any less. Why? Abuses (except those passed into law by Congress), get a lot of attention, people get heat, they straighten out and all returns to normal. Witness the Japanese internment camps in WWII. That’s not going to happen again. And, after WWII, all kinds of decisions and laws reversed a lot of oppressive laws, such as Jim Crow, and the country as a whole became more free.

        That the way the system works. It goes too far one way, it gets corrected, and keeps on it progress toward more and more freedom. Again, witness Judge Walker’s ruling. Terrorists will never win that battle–even if it was something they had an interest in.

        • phred says:

          That’s kind of odd since we were not in Iraq or Afghanistan when they attacked.

          pssst… it was Saudi Arabia. Bin Laden said that he was motivated by our presence in Saudi Arabia. He wanted us to leave. We were the ones who decided that we should attack Afghanistan and Iraq for a criminal act committed by and large by Saudis.

          • cregan says:

            Far as I know, we were there with the consent of the Saudi Government.

            But, again, I never said they fought us because they hated our freedoms. That was someone else.

            • phred says:

              True. What you said was that they want to destroy us, to wipe us out of existence and nothing else will satisfy them. I think that is a strawman, not supported by evidence, that serves the function of promoting eternal war, a grossly immoral pursuit.

              But that can’t possibly be right, because we treat others better than they treat us.

        • croghan27 says:

          That’s kind of odd since we were not in Iraq or Afghanistan when they attacked.

          Am I missing something here … Desert Storm was in 1990-91, and the WTC came down in 2001. Yes, the troops had been withdrawn, but some very punishing sanction were in place, and then there were the bombs … As it was, this was all a secondary consideration to the presence of foreign troops in Saudi – the home of Mecca.

          Witness the Japanese internment camps in WWII. That’s not going to happen again
          The error of your point lies in this sentence … in fact it is happening again – basic tenets of the Constitution are being compromised to keep certain designated peoples incarcerated – that a discrimination happened in the past does not make it any less of a discrimination.

    • bobschacht says:

      They do not care if the US goes down with all rights in tact or with only a few, so long as it goes down by any means.

      I disagree with this statement completely. If we throw our rights away and go down, it rates to them as a double victory: A military victory over our brute force, and a cultural victory over our values as well. Remember, this is not just a military war; from their perspective it is a cultural war as well.

      Bob in AZ

      • bmaz says:

        They cannot beat us militarily, and readily admit it; the only way they can beat us is by destroying us from within. They have readily admitted that as well, and are doing a pretty sterling job of it all things considered.

        • skdadl says:

          I dunno — I think that some of our guys were already eroding us from within before they were lucky enough to get an objectifiable “enemy.” (By “us” I mean the West generally — I’m trying to express solidarity here.)

          (Footnote to something ‘way back there: Funny –I always thought of the Lurking Mod as being sort of seven feet tall, robed in shimmering white, maybe with wings, and probably female.)

        • bobschacht says:

          Al Qaeda and the Taliban actually are beating us militarily. Whenever we try “capture and hold,” we can’t sustain it for long. Look at the vaunted Kandahar strategy. Remember? We were supposed to Capture and hold in places like Marjah, drop in our “Government in a box” thing, and leave. Kandahar was going to be the next big fight. Well, it ain’t going so good over there.

          It really didn’t work all that well in Iraq, either. Remember Fallujah? After reducing it to rubble, we essentially had to leave it in the hands of whomever wanted to govern it. Basically, our strategy was capitulation, on a province by province basis, so the press wouldn’t notice. Our troops don’t really “control” Iraq any more; they’ve essentially all been restricted to the bases. We control the bases, and the “Green Zone”, and have basically given up on everything else.

          Bob in AZ

    • earlofhuntingdon says:

      Our colonial forebears didn’t hate the British for their freedoms, any more than Gandhi and his fellow Indians hated them for their freedoms. The Brits, more accurately, their actions, were hated because they deprived those they occupied of their rights and freedoms in order to increase British wealth and power. And because they claimed to do so in order to civilize those they occupied and out of “Christian” concern for their souls. The latter is especially rich as it completely reverses the roles of Roman and Jewish or Christian slave. Hence, the quip attributed to Gandhi, when asked about Western civilization: “It would be a good idea.”

      A document that includes the following quote also includes some of the specific reasons our forebears hated British actions. Ironically, some of the rights we claimed that belonged to us then exceeded those available to our English contemporaries, something that Iraqis and Afghans might say applies to them and the heavily circumscribed constitutional rights that have become the rule since 9/11:

      We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

      Those abuses included the king’s refusal to give his assent to necessary and just laws, his obstruction of the administration of justice, his subjecting his colonialists to the power of foreign jurisdiction, his sending “swarm of Officers” to harrass the occupied, to keeping a standing army amongst them, his elevation of the military above civilian authorities. Indeed, the detailed list could have been compiled by an aide to Gandhi or to an Iraqi or Afghan lord:

      For Quartering large bodies of armed troops among us:
      For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
      For cutting off our Trade with all parts of the world:
      For imposing Taxes on us without our Consent:
      For depriving us in many cases, of the benefits of Trial by Jury:
      For transporting us beyond Seas to be tried for pretended offences
      For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
      For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
      For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

      Often ignored are the words that immediately follow that first quote from the Declaration of Independence:

      That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

      Bush’s nostrum that “they hate us for our freedoms” is elegant, pernicious and foul propaganda.

      • cregan says:

        As mentioned before, I never said they hated us for our freedoms. I said, they don’t give a crap one way or the other about our freedoms–except where a lack of it applied to them might prevent them from hiding what they are doing or from getting back to the fight. That, they care a lot about. The freedom you or I have or don’t have; they could care less.

      • thatvisionthing says:

        Holy shit, you should bold this one

        For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States

        I’m just going to stare at that one for a while.

  32. phred says:

    So, of course, you are right, we were worse and that’s why you’d rather live here than there.

    I live here because it is my home.

    I never said we were worse. I just said we weren’t better.

    And fwiw, I have yet to make a comparison to Hitler. Just sayin’.

  33. fatster says:

    O/T. Wonder who is being protected by this arrangement.

    Colombian paramilitary leaders extradited to US, where case files are sealed


  34. powwow says:

    Aside from that, [my] main point was that the situation got out of hand and complicated because the government tried to keep them as POW’s but not give them the rights of POW’s.
    – cregan @ 67

    It is [the military] NOT saying these guys were POW’s that resulted in every one of the abuses you mentioned. Had [our non-citizen detainees] been classified as POW’s, none of it, or at least nearly none of it would have happened.
    – cregan @ 91

    [T]he origin of the baloney that has happened re:Gitmo began when the US wanted to keep the other side as POW’s but didn’t classify them as such and give them the rights of a POW.
    – cregan @ 108

    As Mary indicated @ 71, this “main point” of cregan’s is, I think, both profoundly important and profoundly true.

    Start with one core, explicit right and privilege under the law of war regarding the treatment in captivity of POWs: no coercive interrogation permitted [recall the familiar ‘name, rank, and serial number’ (and date of birth) line spelling out the limited information required to be given to their captors by POWs].

    That alone practically amounts to game, set, and match, if POW status had been applied from the outset, as required under law, in the absence of fair hearings to revoke it. Then, if fair hearings had been held, all those (600+?) not legitimately held as combatants in the armed conflict (those simply sold for bounties, etc.) could and should have been identified early on, and released. Remaining prisoners, if lawfully stripped of their POW status, should then have been humanely treated under Common Article 3 standards, and, if alleged to have violated the recognized law of war (being an “unprivileged” belligerent is not in itself such a violation), prosecuted in a regularly constituted court, using untainted evidence proving same.

    Yes, there really was a compelling reason why the community of nations decided, en masse, to ratify the four Geneva Conventions following the horrors of World War II. Horrors which have apparently subsided enough in human memory that the U.S. Congress and President now think that law of war restrictions should only apply to others, not to us.

    The likes of Goldsmith, his “lawfare” buddy Ben Wittes, and Senator Lindsey Graham, will never concede that those in Guantanamo (or Bagram) should have been or should be treated as POWs (absolutely nothing in the law of war prevents the U.S. from so treating those captives, regardless of their form of uniform, or lack thereof, etc.). It would destroy their whole argument and world view, which demonizes as illegitimate or “unlawful” lightly-armed, guerrilla fighters abroad who they avidly promote targeting with the lethal force of our heavily-mechanized Armed Forces and CIA, and, if and when such fighters are captured, approve of our practicing and experimenting on as we please, in judicially-unsupervised “national security”-justified privacy.

    The refusal of our military chain of command to honor the law of war, combined with the lack of Congressional or judicial supervision, means that, for example, even if 75% of those captured abroad objectively have nothing to do with the guerrilla fighting that offends us (never mind no involvement in the 9/11 attacks), they too can be toyed with for unaccountable years, in privacy, in the nation where apprehended, or in any other nation to which we secretly transport them, at the whim of the Executive.

    I think this foundational reality deserves more focus. As I’ve noted, the Geneva Conventions/law of war mandate a means [Article 5 hearings, implemented via Army Regulation 190-8] for stripping POW protection from detainees – a means and due process which the U.S. has lawlessly refused to honor, post-9/11. [While pretending, usually, to be in compliance – see the CSRTs and other such Wolfowitz-worthy pretensions to due process, which were in reality nothing of the kind, as at least one military judge was forced to rule in 2007.] As cregan notes, enforcing just that one important, threshold requirement of an existing Army regulation would alone have prevented a great deal of abusive wrongdoing and lawless American behavior over the last nine years. Yet still today, those with the power and duty to act to reverse these open violations of law and regulation – the House and Senate Armed Services Committees, the D.C. Circuit and Supreme Courts, the Commander in Chief of our deployed Armed Forces, the Attorney General, etc. – continue to look the other way, with indifference and impunity. In the vacuum those irresponsible, cowardly authorities created and maintain come the Addingtons and the Yoos and the Goldsmiths and the Wittes and the Grahams to fill it however they please.

    The fact that we are fighting a non-State enemy – as armed conflict “combatants” rather than international criminals – is all the excuse that our domestic practitioners of “lawfare” need to unilaterally rewrite the internationally-recognized law of war as a one-way, America-favoring street.

    Steve Vladeck, who’s been doing yeoman’s work standing up for the rule of law on multiple related fronts lately, has an important new analysis up of Lindsey Graham’s S. 3707 – a bill that disregards, as usual, the law of war mandate to provide legitimate due process before stripping POW protections from detainees, and mimics Goldsmith’s guilt-as-premise use of language in its title: the “Terrorist Detention Review Reform Act.” [The legitimate Executive Branch-generated ‘guilt-as-premise’ of real, fairly-categorized POWs is insidiously lifted by Goldsmith and Graham in order to illegitmately apply ‘guilt-as-premise’ to non-POWs who have never been given a fair opportunity to contest their alleged role – never mind whether that role was “privileged” or “unprivileged” – in the armed conflict in question.]

    Steve notes, in part:

    Looming in the background of the ongoing conversation over the appropriate way forward on detention (both at Guantánamo and elsewhere) is S. 3707 (the “Terrorist Detention Review Reform Act,” better known as the [Lindsey] Graham bill), introduced last month and framed as one of the most comprehensive attempts yet at legislative resolution (or at least clarification) of many of the recurring issues in the post-Boumediene habeas litigation.


    In the post that follows, I aim to identify a number of problems with the Graham bill as currently drafted, at least some provisions of which cause a lot more mischief than Ben [Witte’s] posts suggest. (Some of these concerns have already been raised by Daphne Eviatar here and here.) But lest readers think that my concerns with the Graham bill can be “fixed” simply by addressing the critiques outlined herein, I conclude with a more general explanation for why, in my view, detention legislation like the Graham bill is both unnecessary and unwise. In short, my specific objections to S. 3707 notwithstanding, better drafting won’t—and can’t—solve my real concerns.

    Because of the unusual length of this post, I begin with a roadmap: Part I summarizes the current version of the Graham bill. Part II offers my specific objections to it. Part III lays out the more general critique of such “framework” detention legislation.


    One of the most remarkable things that the Graham bill does–in two separate places–is provide for the potentially fundamental expansion of the scope and nature of the armed conflict Congress authorized in the September 2001 Authorization for the Use of Military Force (AUMF).


    Thus, for better or worse, the Graham bill would dramatically enlarge the scope of who could be detained as compared to the status quo (or, at the very least, would codify the erroneous dicta in [a D.C. Circuit panel’s] Al-Bihani), and in a manner that might well be inconsistent with international law. [In addition, wrangling over what it means to be “part of” al Qaeda is itself an issue that would surely create a similar range of decisions from the district court as those that we’ve seen under the AUMF. So the Graham bill replaces one ambiguous set of terminology with another.]


    As those familiar with my work (and recent postings) should know, I am no fan of the current status quo in the Guantanamo litigation, especially the vast majority of decisions in detainee cases by the D.C. Circuit. As a result, it may seem strange that I am devoting so much energy to defending the power of the courts when I am so troubled by how those courts are (or, more precisely, aren’t) using that power. But as problematic as some of the recent decisions have been, framework legislation like the Graham bill could do even more damage, on a far wider (and longer-range) scale. For better or worse, the Guantanamo cases are a short-term problem. But the notion that these kinds of decisions are for Congress, and not the courts, is a principle with the ability to transcend the current debate, and to go to the very structural separation of powers between the branches.

    To which Gabor Rona (the International Legal Director of Human Rights First) helpfully adds in a comment:

    You note that the [Graham] bill would expand the scope of detention authority derived by the habeas courts from the AUMF, per Hamdi. Specifically, you note that the government could detain individuals who are not “privileged enemy belligerents”; and (1) have engaged in hostilities against the U.S. or its coalition partners; (2) have “purposefully and materially supported hostilities against the United States or its coalition partners,” or (3) were members of, parts of, or “operated in a clandestine, covert, or military capacity” on behalf of the Taliban, al Qaeda, or associated forces.


    Like you, and unlike [D.C. Circuit] Judge Rogers (whose strange and gratuitous views on the topic have been rejected by the en banc-ers) I believe that detention authority is constrained by international law. You suggest that (2), and especially (3), are problematic in this regard, but you appear to have less concern about (1).

    I agree that (3) is more troublesome than (2), which is more troublesome than (1). But not because of their relative (non)comportment with international law. Rather, because each number casts a wider net than the one before it, while all three are, I believe, outside the scope of IHL [International Humanitarian Law, aka the law of armed conflict or the law of war] detention authority, the suggestions of Hamdi notwithstanding.

    To understand why I may not be off my rocker to suggest that IHL [the law of war] does not support detention even of Graham category (1), it is necessary to return to the distinction between the IHL of international armed conflict (IACwars between States) and the IHL of NON-international armed conflict (NIACwars in which a non-State armed group, like the Taliban and al Qaeda, are parties).

    In IAC, applicable IHL, namely the Third Geneva Convention, articulates detention authority for privileged belligerents who otherwise might not be detainable. Why not otherwise detainable? Because immunity from the operation of domestic criminal law for mere acts of belligerency (as distinguished from war crimes) is the essence of privileged belligerency.

    The IHL of NIAC, by contrast, as articulated in Common Article 3 of the Geneva Conventions, assumes detention happens but does not articulate detention authority. Why not? Because NIAC fighters and their “hangers on” (to use an all-inclusive non-term-of-art) are criminals [under domestic law] with no privilege of belligerency. Or, in the event domestic administrative detention exists (and comports with ICCPR due process requirements) they can be detained even absent criminal charge. IHL [the law of war] doesn’t need to create detention authority for those properly detainable under domestic law.


    In other words, if Norway’s army, pursuant to the Norwegian AUMF and with the consent of the US government, engaged al Qaeda militants on US soil, would Norway be empowered to remove Americans from the US and detain them absent US judicial process, especially absent a US administrative detention law?

    In short, neither a declaration of war by a State against a non-State entity nor the domestic law of that State can be the sole basis upon which that State can detain any person from any country, let alone for an indeterminate period.


    Recognizing that failed States and those that protect terrorists will remain a problem to which other States will respond with armed force triggering application of the laws of war, the solution to the detention issue should be one that complies with the Golden Rule: a scheme that we could consent to be bound by, as well as to impose on others – a solution that can only be implemented through the auspices of international law and cooperation. […]

    The status quo, by contrast, is to presume that the US justly exercises powers it would never tolerate being exercised by others against Americans.

    This is the (well trod) road to injustice and chaos.

    – Posted by: Gabor Rona | Sep 12, 2010 10:59:05 AM

    [A couple of points for further background to the above:

    1. POWs may not be tried for alleged violations of the law of war in military commissions, per the 2006 and 2009 Military Commission Acts themselves. Rather, they would be tried in military courts-martial.

    2. “Unprivileged” means lacking immunity from prosecution for violations of domestic law in the jurisdiction in which the acts take place – an immunity that “privileged” combatants in armed conflicts are given (for murdering enemy soldiers, etc.). Neither “privileged” nor “unprivileged” combatants are immune from prosecution for violations of the law of war, as internationally recognized (targeting civilians, using illegal weapons, etc.), and both must be afforded due process in regularly constituted courts if prosecuted for violations of the law of war.]

    So Lindsey Graham (with help from private sector friends like Wittes, and probably Goldsmith) is clearly preparing not to repeal the outdated 2001 AUMF, nor to clarify it by narrowing and defining its amorphous objectives, but rather to expand and make permanent its vague “authorization for the use of force” abroad against a shadowy opponent. And what is the principled “opposition” in Congress doing? Preparing an opposing AUMF-repeal or revision bill? Arguing for ending the armed violence and replacing it with criminal apprehension and prosecution of terrorist suspects? Or remaining silent until forced to vote on Graham’s proposal on the floor, after their Party leader has quietly arranged with the administration for its consideration in the face of zero expressed objection or threats to filibuster from members of the Democratic caucus?

  35. wayoutwest says:

    This is a very interesting post and the responses have been insightfull but no one has asked or explored why this is happening. Why haven’t Americans been in the streets in large numbers demanding an end to these unamerican actions?

    During the Civil Rights Movement we saw the brutality of Jim Crow and people responded nation wide. What happened to the ideal of American support for Human Rights?

    Has that much of America gone over to, the dark side, or are we hideing behind American exceptionalism?

    • bobschacht says:

      During the Civil Rights Movement we saw the brutality of Jim Crow and people responded nation wide. What happened to the ideal of American support for Human Rights?

      What happened is that the abuses now taking place are not taking place in public, on American streets, but over THERE, in places like Gitmo, Bagram, and Abu Ghraib, where neither the press nor the public can go, so that even if pictures are taken, we have empowered Sec. of Defense Gates to withhold them from public inspection if he thinks national security might be harmed.

      Bob in AZ

      • wayoutwest says:

        I agree that the gov and MSM are supressing news about these subjects but we did see Abu Ghraib and we have more sources for information now than we did then.

        I believe this problem runs deeper than just censorship. The treatment of immigrants is one example i see of how Americans have lost something critical to our national identity.

        My point is that we as a country have compromsed many of our ideals for some false security when we know if we treat the, other, badly we may be opeaning ourself to similar treatment.

  36. Garrett says:

    First, the White House has to acknowledge what much of the world, although not necessarily much of America, knows to be true.

    [The American people] will be ready to show the world that we are not a country that ships prisoners in the dead of night to be tortured in far off countries. That we are not a country that runs prisons which lock people away without ever telling them why they are there or what they are charged with. That we are not a country which preaches compassion and justice to others while we allow bodies to float down the streets of a major American city.

    That is not who we are.

    Senator Barack Obama, April 23, 2007

    This is the only way out. We must first show (admit) to the world who we are. Then we must change who we are.

    We can’t possibly show to the world that we are not a nation that ships prisoners to be tortured in far off countries, by shutting down and suppressing the lawsuits of the prisoners we did it to.

    We certainly can’t show to the world that we are not a country that locks people away without charge with, by locking away without charge the people we did it to.

    We are wrestling with who we are as a nation. It’s not easy. But continued denial of the most obvious and well-known of truths will never work.

  37. powwow says:

    To impose another long comment on readers here, I’ve excerpted below a speech given in 1841 in the Senate chamber, that provides a sampling of what we’ve lost, at least in the way of diligence, honor and integrity in our federal public servants and the nation’s public discourse, as rightly decried above by wayoutwest and Bob in AZ. The causes of the obvious decline in character of our representatives, and those speaking in the name of our national identity, I can’t comprehensively identify, but an extreme arrogance born of our modern choice to field, relative to other nations, an immense standing military force, certainly seems to be one of them.

    Because this United States Senator represented, in 1841, the same state – South Carolina – that Lindsey Graham represents in 2010, his explanation of our (former) national ambition, and the principles he espouses in response to a vicious attack on a steamboat in U.S. territory, seem particularly apt, on multiple levels, to the subject of Mary’s post, and to those of many other posts at emptywheel’s, and to the discussion of why and where we went so wrong on our national course (a course that Senator Graham’s pending bill can only further derail).

    Here’s United States Senator John Caldwell Calhoun, of South Carolina, speaking June 11, 1841 [in reference to the notorious 12/29/1837 attack, burning, and sending over Niagara Falls, with unarmed American citizens aboard (one or more murdered and others alive), of the American steamboat Caroline, sometime after midnight, while anchored at Schlosser, New York (the boat had recently supplied provisions to some Canadians gathered on Navy Island in the Niagara River, who were attempting to rebel against Britain) – at British Militia Colonel Allan McNab’s command and British Navy Captain Drew’s direction, as executed by a crew of voluntary British Canadian ‘mercenaries’ who entered the U.S. from Canada (where the colonial authorities had been authorized to fight the Canadian “insurgents”)]:

    Permit me at the outset, to premise that I heartily approve of the principle so often repeated in this discussion, that our true policy, in connection with our foreign relations, is neither to do nor to suffer wrong, not only because the principle is right of itself, but because it is, in its application to us, wise and politic, as well as right. Peace is pre-eminently our policy. Our road to greatness lies not over the ruins of others, but in the quiet and peaceful development of our immeasurably great internal resources – in subduing our vast forests, perfecting the means in internal intercourse throughout our widely extended country, and in drawing forth its unbounded agricultural, manufacturing, mineral, and commercial resources. In this ample field, all the industry, ingenuity, enterprise, and energy of our people may find full employment for centuries to come; and, through its successful cultivation, we may hope to rise, not only to a state of prosperity, but to that of greatness and influence over the destiny of the human race, higher than has ever been attained by arms by the most renowned nations of ancient and modern times. War, so far from accelerating, can but retard our march to greatness. It is, then, not only our duty, but our policy, to avoid it, as long as it can be, with honor and a just regard to our right; and, as one of the most certain means of avoiding war, we ought to observe strict justice in our intercourse with others. But that is not of itself sufficient. We must exact justice as well as render justice, and be prepared to do so; for where is there an example to be found of either individual or nation, that has preserved peace by yielding to unjust demands?


    My sole object is to ascertain whether the principle already stated, and which all acknowledge to be fundamental in our foreign policy, has in fact been respected in the present case. I regret to state that the result of my investigation is a conviction that it has not. I have been forced to the conclusion that the [recently-appointed] Secretary of State [Daniel Webster] has not met the peremptory demand of the British Government for the immediate release of [Alexander] McLeod [one of the attackers of the ship] as he ought; the reasons for which, without further remark, I will now proceed to state.

    […] On this allegation, the British Minister, acting directly under the orders of his Government, demanded [McLeod’s] immediate release, on the broad ground that he, as well as others engaged with him, was “performing an act or public duty, for which he cannot be made personally and individually responsible to the laws and tribunals of any foreign country;” thus assuming as a universal principle of international law, that where a Government authorizes or approves of an act of an individual, it makes it the act of the Government, and thereby exempts the individual from all responsibility to the injured country. To this demand, resting on this broad and universal principle, our Secretary of State assented; and, in conformity, gave the instruction to the Attorney General, which is attached to the correspondence, and we have thus presented for our consideration the grave question, do the laws of nations recognise any such principle?

    I feel I hazard nothing in saying they do not. No authority has been cited to sanction it, nor do I believe that any can be. It would be no less vain to look to reason than to authority for a sanction. The laws of nations are but the laws and morals, as applicable to individuals so far modified, and no further, as reason may make necessary in their application to nations. Now, there can be no doubt that the analogous rule, when applied to individuals, is, that both principal and agents, or, if you will, instruments, are responsible in criminal cases; directly the reverse of the role on which the demand for the release of McLeod is made. Why, I ask, should the rule in this case be reversed, when applied to nations, which is universally admitted to be true in the case of individuals? Can any good reason be assigned? To reverse it when applied to individuals, all must see, would lead to the worst of consequences, and, if I do not greatly mistake, must in like manner, if reversed, when applied to nations. Let us see how it would act when brought to the test of particular cases.


    To all these questions, and thousands of others that might be asked, no right minded man can hesitate for a moment to answer in the negative. The rule, then, if it does exist, must be far from universal. But does it exist at all? Does it even in a state of war, when, if ever, if we may judge from the remarks of gentlemen on the opposite side [defending the Secretary of State’s action], it must? They seemed to consider nothing more was necessary to establish the principle for which they contend but to show that this and all other cases of armed violence on the part of one nation or its citizens against another, is in fact war; informal war, as they call it, in contraindication from one preceded by a declaration in due form.

    Well, then, let us inquire if the principle for which they contend, that the authority, or the sanction of his Government, exempts an individual from all responsibility to the injured Government, exists even in case of war.

    Turning, then, from a state of peace to that of war, we find at the very threshold, a very important exception to the rule, if it exists at all, in the case of spies. None can doubt that, if a spy is detected and arrested, he is individually and personally responsible, though his pockets should be filled with all the authority the country which employed him could give.

    But is the case of spies the only exception? Are they alone personally and individually responsible? Far otherwise. The war may be declared in the most solemn manner; the invaders may carry with them the highest authority of their Government, and yet, so far from exempting them individually, officers, men, and all, may be slaughtered and destroyed in almost every possible manner, not only without the violation of international laws, but with rich honor and glory to their destroyers. Talk of the responsibility of the Government exempting their instruments from responsibility? How, let me ask, can the Government be made responsible, but through its agents or instruments? Separate the Government from them, and what is it but an ideal, intangible thing? True it is, when an invading enemy is captured or surrenders, his life is protected by the laws of nations, as they now stand; but not because the authority of his Government protects it, or that he is not responsible to the invaded country. It is to be traced to a different and higher source – the progress of civilization, which has mitigated the laws of war. Originally it was different. The life of an invader might be taken, whether armed or disarmed. He who captured an enemy had a right to take his life. The older writers on the laws of nations traced the lawfulness of making a slave of a prisoner to the fact that he who captured him had a right to take his life; and, if he spared it, a right to his service. To commute death unto servitude was the first step in mitigating the horrors of war. That has been followed by a further mitigation, which spares the life of a prisoner, excepting the case of spies, to whom the laws of war, as they stood originally, are still in force. But, because their lives are spared, prisoners do not cease to be individually responsible to the invaded country. Their liberty for the time is forfeited to it. Should they attempt to escape, or if there be danger of their being released by superior force, their lives may be still taken, without regard to the fact that they acted under the authority of their country. A demand on the part of their Government for an immediate release, on the ground assumed in this case, would be regarded as an act of insanity.


    To place this result in a stronger view, suppose, after the destruction of the Caroline, the armed band which perpetrated the act had been captured on their retreat by an armed force of our citizens; would they not, if the transaction is to be regarded as war, justly have been considered as prisoners of war, to be held as such, in actual confinement, if our Government thought proper, till the question was amicably settled? […] Viewed in this light, the authority or sanction of the British Government would be a good defense against the charge of murder or arson, but it would be no less so against his release.

    But, this is not a case of war, formal or informal, taking the latter in the broadest sense. It has not been thought so nor so treated by either Government, and Mr. [Secretary of State] Webster himself, in his reply to Mr. Fox [the British Minister], which has been so lauded by the two Senators [Mr. Rives of Virginia and Mr. Choate of Massachusetts], speaks of it as “a hostile intrusion into the territory of a power at peace.” The transaction comes under a class of cases fully recognised by writers on international law as distinct from war – that of belligerents entering with force the territories of neutrals; and it only remains to determine whether, when viewed in this, its true light, our Secretary has taken the grounds which our rights and honor required, against the demand of the British Minister.

    Thus regarded, the first point presented for consideration is, whether Great Britain, as a belligerent, was justified in entering our territory under the circumstances she did. And here let me remark, that it is a fundamental principle in the laws of nations, that every State or nation has full and complete jurisdiction over its own territory to the exclusion of all others – a principle essential to independence, and therefore held most sacred. It is accordingly laid down by all writers on those laws who treat of the subject, that nothing short of extreme necessity can justify a belligerent in entering, with an armed force, on the territory of a neutral power, and, when entered, in doing any act which is not forced on them by the like necessity which justified the entering. In both of the positions I am held out by the Secretary himself. The next point to be considered is, did Great Britain enter our territory in this case under any such necessity, and, if she did, were her acts limited by such necessity? Here again I may rely on the authority of the Secretary, and, if it had not already been quoted by both of the Senators on the other side who preceded me, I would read the eloquent passage towards the close of his letter to Mr. Fox, which they did with so much applause. [Excerpted below***] With this high authority, I may then assume that the Government of Great Britain, in this case, had no authority under the laws of nations either to enter our territory or to do what was done in the destruction of the Caroline after it was entered.


    Here let me say that I entirely concur with Mr. Forsyth, that the approval of the British Government of the transaction in question was an important fact in the [New York state] trial of McLeod, without, however, pretending to offer an opinion whether it would be a valid reason against a charge of murder, of which the essence of killing with malice prepense. It is a point for the court and jury, and not for us to decide. Nor do I intend to venture an opinion whether, if found guilty, with knowledge of the fact that his Government appoved of his conduct, it ought not to be good cause for his pardon, on high considerations of humanity and policy. I leave both questions, without remark, to those to whom the decision properly belongs, except to express my conviction that there is not and has not been the least danger that any step would be taken towards him not fully sustained by justice and sound policy. Any step which did not comport with these would shock the whole community.

    […] It is a maxim, that he who seeks equity must do equity; and, on the same principle, a Government that seeks to enforce the laws of nations in a particular case against another, ought to show that it has first observed them on its own part in the same transaction; or at least show plausible reasons for thinking that it had. None, but a proud and haughty nation like England, would think of making the demand she has without even deigning to notice our complaints against her conduct in connection with the same transaction; and I cannot but think that, in yielding to her demand, under such circumstances, the Secretary has not only failed to exact what is due to our rights and honor, as an independent people, but has, as far as the influence of the example may effect it, made a dangerous innovation on the code of international laws. I cannot but think the principle in which the demand to which he yielded was made, is highly adverse to the weaker power, which we must admit ourselves yet to be, when compared to Great Britain. Aggressions are rarely by the weak against the stronger power, but the reverse; and the practical effect of the principle, if admitted, would be to change the responsibility of declaring war from the aggressor – the stronger power – to the aggrieved, the weaker; a disadvantage so great, that the alternative of abandoning the demand of redress for the aggression would almost invariably be forced on the weaker, rather than to appeal to arms. This case will furnish an illustration.

    ***Here’s the (limited) portion of Secretary of State Webster’s letter to the British Minister to which Senator Calhoun was probably referring with approval [compare this recitation of the “extreme necessity” that the law of nations requires before a nation invades another sovereign nation’s territory in the name of “self-defense,” to how today’s presidential administrations throw their weight around abroad, with the use of drone strikes and secret hit lists, etc., etc.]:

    Under these circumstances, and under those immediately connected with the transaction itself, it will be for her Majesty’s Government to show upon what state of facts and what rules of national [meaning international] law the destruction of the “Caroline” is to be defended. It will be for that Government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking here in the darkness of night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing here to a fate which fills the imagination with horror. A necessity for all this the Government of the United States cannot believe to have existed.


    This Republic does not wish to disturb the tranquility of the world. Its object is peace, its policy peace.

    Secretary of State Daniel Webster, April 24, 1841


    • thatvisionthing says:

      Are you familiar with a quote by Webster where he said a Constitution or a law doesn’t matter on paper, it matters only insofar as people believe in it or observe it? Something like that? I read it maybe 15 years ago and then tried to find it recently and couldn’t. (But pretty much I love these quotes, so looking is its own reward :-)

  38. klynn says:


    Jeff Kaye @ 37 is right, I lifted what had been part of our cultural history and inserted it here. I didn’t have to find points to resonate – I took the ones that we’ve had for years and recycled them here.

    You are the best recycler I have ever read.

    Thank you for your depth of wisdom.

    Printed your post off and mailed it to the White House.

  39. gvandergrift says:


    I like the comparison of detainees to lynchees, but overall you’re citing the wrong work, unless you’re point is how far we’ve fallen. The sheriff has arrived at the end of the movie and the colonel in the Confederate uniform who has supervised the festivities commits suicide. Not one of GW Bush, Cheney, Rumsfeld, or Powell has committed self-murder. Instead, the worst are full of passionate intensity, and a weak man like Obama consents. The movie was made in 1943. Maybe then the US actually was engaged in existential combat with totalitarianism and maybe truth and justice actually were the American way. What actor could deliver Fonda’s speech today? In the real movie in which we’re acting, there is no sheriff, nor any cavalry, there are no adults to save us as in “Lord of the Flies,” and God is dead. Your post is civilized and quaint. You need something like “Antigone” or “The Spanish Tragedy” where injustice extends to the very highest levels. You need something bleak like “Ran” or “King Lear.” I’m with you, but things don’t look promising from here.

  40. Mary says:

    Wow – I missed a bunch; lovely writing and interesting ideas to boot.

    Cregan, you aren’t picking up on the major part of the battle with extremists – it is ALWAYS a battle of ideology. That’s because while the extremists typically are spawned from issues of control of geography, resources and non-ideological issues, they only ‘win’ by spreading their ideology. That means that competing ideologies have to be made less attractive. Destroying “America” so that what is left is a “homeland” that indulges in anti-(law, tolerance, rights, middle class, etc.) policies becomes not only a less attractive ideology, but one that “recruits” for their side. It’s not that different in some ways than the political mudslinging here – part of how you win is by discrediting and demonizing the “other” side; if they do it for you by alienating voters, you’ve “won” and that is absolutely a part of how radical ideology spreads.

    When we scratch our heads over why so many of the hijackers were from our “friends” Saudi Arabia and Egypt – we ignore what the totalitarian regimes we have propped up there have done to generate that radical response. If you’re really interested (I’m not sure you are) an interesting writer and speaker is Lawrence Wright – he directly links the violence perpetrated by the corrupt government on some of the originators of the movements with the violence of those movements. While America is America – it is counterweight. Once it becomes a mega version of Egypt or Saudi Arabia, it becomes a gift to al-Qaeda and other radical movements.

    (psst – I know you’ve moved the number down from 2 mill to 1.5 mill, but again, that is an unsupported number and you seem to forget that Iran was invading Iraq and that “his own people” that Hussein killed were areas of his country that had chosen to side with Iran (the Khurds) and fight against the country for separatism. Think how many were killed in the civil war – our own people. Since it was a war of provocation with Iran, the US was there promoting Iraq’s response left and right)

  41. Mary says:

    But cregan – I do think your POW point is important, even though I don’t completely agree with it. It is a really serious point and I’m glad you raised it.

    pow-wow – thanks for all you add.

    @112 – what bobschacht said and the evolution of media based propaganda and a more and more media reliant population. IMO at least

    thatvthing – good to see you – most of what EOH put ups could end up in bold ;) That one is particularly apt, though, isn’t it? I think it was Gary Solis who had an article awhile back on all the killings and abuses, with basically no convictions.

    @124 – I’ve never seen that quote from him. It just makes the sighs deeper, doesn’t it?

    @132 – that is the point, how far we’ve fallen. The same pressures to fall – you’ve lost something and someone has to be punished – and the same lapses (unjust killings), but, as @3, imagine what a different movie if the sheriff had ridden up and made a speech about looking forward and then bought a beer for all the boys.

    • thatvisionthing says:

      Hi Mary, say again this is a great diary, would love to see you post these more often. I spent most of my fdl time this weekend in Bruce Fein’s book salon, had a lovely discussion going on there with Mason on whether juries are the unheaved “anchor that could hold our government to the principles of its constitution.” As for EoH, I read that and I hear music. And, as I did in the book salon, I this is the music I hear: E pleb neesta

      Which makes the unredaction at the bottom of page 14 in Khalid Sheikh Mohammed’s CSRT (PDF) especially poignant in this diary:

      PRESIDENT: Now, I haven’t seen any statements in the evidence we receive so far that claim to come from you other than acknowledging whether you were or not the head of the Military Committee. Were any statements that you made as the result of any of the treatment that you received during that time frame from 2003 to 2006? Did you make those statements because of the treatment you receive from these people?

      DETAINEE: Statement for whom?

      PRESIDENT: To any of these interrogators.

      DETAINEE: CIA peoples. [BLOCK OF REDACTION] [Declassified from KSM CSRT transcript on 6/12/09: This what I understand he told me: you are not American and you are not on American soil. So you cannot ask about the Constitution.]

      E pleb neesta. “These words must apply to everyone or they mean nothing.” Music.

  42. thatvisionthing says:

    The solutions to the dysfunction are the same now as they were eons ago, and for that matter the same as when we were in kindergarten. We have to face the truth, tell the truth and take responsibility.

    Mary, is this what you were thinking of?

    All I Really Need To Know I Learned In Kindergarten
    by Robert Fulghum

    Share everything.

    Play fair.

    Don’t hit people.

    Put things back where you found them.

    Clean up your own mess.

    Don’t take things that aren’t yours.

    Say you’re sorry when you hurt somebody.

    Wash your hands before you eat.


    Warm cookies and cold milk are good for you.

    Live a balanced life – learn some and think some
    and draw and paint and sing and dance and play
    and work every day some.

    Take a nap every afternoon.

    When you go out into the world, watch out for traffic,
    hold hands, and stick together.

    I miss the world.